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[2016] ZAGPPHC 261
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Standard Bank of SA Ltd v Van Dyk (21915/2013) [2016] ZAGPPHC 261; 2016 (5) SA 510 (GP) (29 April 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
29/4/2016
CASE
NO: 21915/2013
Reportable
Of
interest to other judges
Revised.
In
the matter between
THE
STANDARD BANK OF SA
LTD APPLICANT
and
FRANCINA ALTA VAN
DYK RESPONDENT
JUDGMENT
VAN
OOSTEN J:
[1]
This is an
application in terms of rule 30. The issue requiring determination is
whether the respondent (the defendant in the pending
action between
the parties) was entitled, without having served a notice of bar in
terms of rule 26, to bring an application to
dismiss the applicant’s
action, based on the bank’s failure to amend its particulars of
claim pursuant to a court order
upholding an exception against the
bank’s particulars of claim and granting it leave to amend
within the time period laid
down.
[2]
The procedural background to this application is the following. The
order upholding the exception was by agreement and handed
down by
Jansen J, on 14 February 2014. In terms of paragraph 3 of the order,
the bank was ordered ‘to amend its papers within
15 days of the
date of this order’. The order was duly served on the bank’s
then attorneys of record on 26 February
2014, but the bank failed to
comply with the order. Almost 17 months later, on 2 July 2015 the
respondent filed an application
for the dismissal of the bank’s
claim with costs, based on the bank’s failure to comply with
paragraph 3 of the order
(the dismissal application). The bank then
filed a notice in terms of rule 30(2)(b) of its intention to apply
for an order setting
aside the dismissal application as an irregular
step which, after no response was received, prompted the rule 30
application which
is presently before me. The application is opposed
by the respondent.
[3]
The effect of a failure to comply with a court order granting leave
to amend in upholding an exception was dealt with in two
conflicting
judgments. The first is
Santam Insurance Co Ltd v Manquele
1975 (1) SA 607
(D&C) where the court, per James JP, held that in
such instance the provisions of rule 26 applied, which required a
three days’
notice of bar to be served, before application
could be made for a dismissal of the claim. The judgment was not
followed in
Natal Fresh Produce Growers’ Association and
Others v Agroserve (Pty) Ltd and Others
1991 (3) SA 795
(N)
800F-802C, where Hugo J held the opposite: in the event of a failure
to amend the particulars of claim in a combined summons
within the
specified time period in the court order, the party is barred from
amending and the whole action falls away. The finding
is premised on
a distinction the learned judge had drawn between a case initiated by
a summons followed by a declaration, on the
one hand, and a combined
summons on the other. In the latter case, the learned judge reasoned,
neither the summons nor the particulars
of claim can in law exist
separately with the result that a successful exception results in ‘if
one falls, the other must
do as well’. On the other hand a
successful exception against a declaration may leave the summons,
which is a pleading in
its own right, standing as an ‘empty
husk’.
[4]
The dicta in
Natal Fresh Produce
must however be considered in
the light of the well-known judgment of the then Appellate Division
in
Group Five Building Ltd v Government of the Republic of South
Africa (Minister of Public Works and Land Affairs)
[1993] ZASCA 4
;
1993 (2) SA
593
(A), in which Corbett JA (as he then was), writing for the court,
finally coined the rule applicable as a corollary to successful
exceptions, which is that leave to amend within a certain period of
time, if so advised, must always be granted to a plaintiff,
even
where the pleading was set aside on the ground that it disclosed no
cause of action. In arriving at this conclusion Corbett
JA (
Group
Five
603C-H) specifically disapproved of the distinction drawn by
Hugo J, to which I have referred above, for the reason that it would
lead to the anomaly that it would leave no room for the grant of
leave to amend when an exception is successfully taken to the
particulars of claim in a combined summons on the ground that no
cause of action is disclosed, a proposition that was considered
to
offend the law and the practice in our courts. As correctly argued by
counsel for the bank, the disapproval of Hugo J’s
distinction
in
Group Five,
effectively overrules the judgment in
Natal
Fresh Produce.
It is interesting to note that the judgment of
Harms J (as he then was) in
Princeps (Edms) Bpk en ‘n Ander
v Van Heerden NO en Andere
1991 (3) SA 842
(T) 845D-846D, which
was delivered after the judgment in
Natal Fresh Produce
but
reported in the same volume of the South African Law Reports, without
a reference thereto, contradicts the distinction in
Natal Fresh
Produce
and, as a forerunner thereto, is fully consonant with the
judgment in
Group Five.
[5]
Rule 26 applies to ‘a replication or subsequent pleading within
the time stated in rule 25’ and further to ‘any
other
pleading’ which a party fails to deliver within the time laid
down in the rules ‘or within any extended time
allowed in terms
thereof..’. The application of the rule was confirmed in two
cases which, by way of background, I shall
briefly refer to. In
Beukes v
MEC, Agriculture and Environmental Affairs, Eastern Cape
1999
(4) SA 772
(TkD) where in regard to the plaintiff having failed to
deliver the amended particulars of claim consequent upon a notice to
amend
to which no notice of opposition had been filed, Petse AJ (as
he then was) held that the defendant should have invoked Rule 26
before resorting to an exception in terms of rule 23. I
n
Woolf
v Zenex Oil (Pty) Ltd
1999
(1) SA 652
(W) the plaintiff’s failure to deliver a declaration
within the time laid down in the order referring the application for
trial, was held not sufficient to ground the defendant’s
application for the dismissal of the action, as the defendant was
required to invoke rule 26 in order to place the plaintiff
ipso
facto
under bar. Joffe J reasoned that the referral for trial was ordered
under the provisions of rule 6(5)(g) and, therefore, clearly
with the
intention that the rules of court should apply thereto generally, and
in particular, in regard to the filing of pleadings.
The learned
judge concluded that the period laid down for filing of the
declaration in the order is ‘a time period’,
or on the
facts of that matter, ‘an extension thereof’, falling
within the ambit of 26.
[6] The fundamental
question to be extracted from the above cases is whether the amended
particulars of claim in the present instance
can be classified as a
pleading. Counsel for the respondent, on a parity of reasoning in
regard to an amendment following upon
a notice of intention to amend
in terms of rule 28(1), clearly being a pleading, was driven to
concede that the amendment provided
for in the judgment of Jansen J,
likewise was a pleading. That being so, the amended particulars of
claim fell into the category
of ‘any other pleadings’,
under rule 26. The respondent accordingly, should have invoked rule
26 and awaited the bank’s
continued inaction thereafter before
resorting to an application to dismiss the action. The application to
dismiss was lodged prematurely
and, accordingly, constitutes an
irregular step as contemplated in rule 30(1).
[7]
In the result the following order is made:
1.
The respondent’s application to dismiss the applicant’s
claim, dated 2 July 2015, is declared to constitute an irregular
step
and is set aside.
2.
The respondent is ordered to pay the costs of the application.
_________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPLICANT: ADV M REINEKE
APPLICANT’S
ATTORNEYS: RAMSAY WEBBER
COUNSEL
FOR RESPONDENT: ADV JM PRINSLOO
RESPONDENT’S
ATTORNEYS: GN DRACATOS
DATE
OF HEARING: 25 APRIL 2016
DATE
OF JUDGMENT: 29 APRIL 2016