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[2016] ZAGPPHC 653
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Tuffsan Investments 1088 (Pty) Ltd v Sethole and Another (22826/2015) [2016] ZAGPPHC 653 (4 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: 22826/2015
4/8/2016
In
the matter between:
TUFFSAN
I
NVESTMENTS 1088 (PTY)
LTD
Plaintiff
and
BUSISIWE
AGNES
SETHOLE
First
Defendant
TOBIPROX
(PTY)
LTD
Second
Defendant
JUDGMENT
VAN
DER WESTHUIZEN, A J
1.
This is an opposed application for condonation of the late filing of
an exception taken to the plaintiff s particulars of claim.
2.
The first and second applicants are the first and second defendants
in the main action and the respondent is the plaintiff therein.
I
shall refer to the parties in this judgment as plaintiff and
defendants respectively.
3.
When the matter was called, there was no appearance on behalf of the
plaintiff, despite heads of argument and a practice note
having been
filed on the plaintiff s behalf.
4.
I was advised by Mr de Beer who appeared on half of the defendants
that the plaintiff s attorneys of record had withdrawn as
attorneys
for the plaintiff. A copy of the notice of withdrawal dated 12 April
2016 was handed in. The notice of set down of this
application was
served on 16 March 2016 on the plaintiffs erstwhile attorneys, whilst
they were still recorded as attorneys of
record for the plaintiff.
There has been proper notice of the set down of the hearing of this
application.
5.
It would be prudent to set out the background to the launching of
this application for condonation.
6.
The plaintiff caused a summons to be served on 18 and 19 May 2015
upon the respective defendants. Both the defendants entered
an
appearance to defend the said action on 28 May 2015.
7.
On receiving the notice of intention to defend, plaintiff responded
by serving an application for summary judgment and set it
down for 31
July 2015 on which date leave was granted to the defendants to defend
the action. The plaintiff was mulct with
a cost order.
8.
It appears that the plaintiff thereafter filed a declaration. The
explanation provided in the answering affidavit for the filling
of
the declaration was that the summons was a simple summons, which the
defendants deny. However nothing turns on this issue.
9.
On 22 September 2015 the plaintiff caused a notice of bar to be
served upon the defendants in which the defendants were afforded
a
period of 5 days to file their plea.
10.
The defendants did not serve a plea within the stipulated 5-day
period, but served a notice in terms of the provisions of Rule
23(1)
of the Uniform Rules of Court on the plaintiff calling upon it to
remove several causes of complaint contained in its particulars
of
claim within the prescribed period of 15 days from service of the
said notice. The said notice was served on the plaintiff
s
attorneys on 23 September 2015. The 15-day period allowed expired on
15 October 2015.
11.
The plaintiff failed to remove the causes of complaint within the
allotted 15-day period. Consequently, the defendants were
obliged in
terms of the provisions of Rule 23 of the Uniform Rules of Court to
file their exception, if so intended, by 29 October
2015.
12.
Although the defendants filed their exception at the Registrar of
this Court on 22 October 2015, i.e. well within the prescribed
period
for delivering such, it was not served upon the plaintiffs attorneys
due to an administrative error which I shall deal with
below. The
defendants' exception was eventually served upon the plaintiffs
attorneys on 6 November 2015, effectively 6 days late.
13.
Despite being advised of the administrative error in the serving of
the exception, the plaintiff refused to accept the exception.
The
plaintiff s refusal to accept the late service of the exception
prompted the defendants to launch this application, which they
did on
17 November 2015 and served it on the plaintiff s attorneys on 19
November 2015.
14.
The defendants state that their attorneys of record make use, as many
other firms of attorneys do, of a service rendered by
a messenger
service known as @Law Legal Messenger Services for serving and filing
of legal process. In the present instance @Law
Legal Messenger
Services filed the exception at court, but failed to serve it on the
plaintiff s attorneys. This is the basis upon
which the defendants
apply for the condonation of the late filing of the exception. The
aforesaid error was only realised when
on 3 November 2015 the
plaintiff caused a notice of intention to apply for default judgment
to be served upon the defendants. That
document only came to the
attention of the defendants' attorney dealing with this matter after
hours on 5 November 2015. The defendants'
attorneys immediately
rectified the error on 6 November 2016.
15.
The dispute between the parties relates to the interpretation of the
provisions of Rule 23 of the Uniform Rules of Court and
in particular
with reference to the provisions of Rule 22 and 26 of the Uniform
Rules of Court.
16.
Rule 22(1) of the Uniform Rules of Court provides:
"(1)
Where
a
defendant
has delivered notice of intention to defend, he shall within twenty
days after the service upon him of
a
declaration
or
within twenty
days after delivery
of such notice in respect
of
a
combined
summons,
deliver
a
plea
with or without
a
claim in reconvention,
or an exception
with or without application to strike out."
17.
It is clear from this sub-rule that a defendant has a choice in the
manner in which to respond to a plaintiff s summons, i.e.
either by
filing a plea thereto with or without a claim in reconvention, or
taking an exception thereto with or without an application
to strike
out.
18.
In the event that a defendant opts to take an exception to a
plaintiffs particulars of claim, the defendant is obliged to adhere
to the provisions of Rule 23 of the Uniform Rules of Court. That rule
provides:
"(1)
Where any pleading
is
vague and
embarrassing
or lacks averments
which are
necessary to sustain an action or defence, as
the case
may
be,
the opposing
party
may,
within the period allowed for filing any
subsequent
pleading,
deliver an
exception thereto and may
set it down
for
hearing
in terms of paragraph
(f)
of
subrule
(5)
of
rule
(6):
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: Provided further
that the party excepting shall within ten days from the date on which
a reply to such
notice is received or from the date on which such
reply is due, deliver his exception.
(2)
Where
any
pleading
contains
averments
which
are scandalous,
vexatious,
or
irrelevant, the
opposite
party
may, within
the
period allowed
for
filing
any
subsequent pleading,
apply
for
the
striking
out
of
the
matter
aforesaid,
and
may
set
such
application
down
for
hearing
in
terms
of
paragraph (f) of subrule (5)
of
rule
6,
but
the
court
shall
not
grant
the
same unless
it
is
satisfied
that
the
applicant
will
be prejudiced
in
the conduct of his claim
or defence if it be not granted.
(3)
Wherever an exception is taken to any
pleading,
the grounds
upon
which
the
exception
is
founded
shall
be
clearly and concisely stated.
(4)
Wherever
any
exception
is
taken
to
any
pleading
or
an application
to
strike
out
is
made,
no
plea,
replication
or
other
pleading over shall be necessary."
19.
I
t
is
clear
from
the
first
proviso
to
sub-rule
(1) of
Rule 23
that
where the
complaint
is
that
the
particulars
of
claim
are
vague and
embarrassing, the
defendant
is
obliged to first
afford
the
plaintiff
the opportunity
of removing the causes
of complaint.
The
first
proviso
is
peremptory.
[1]
20.
Rule 26 of the Uniform Rules of Court provides
''Any
party
who fails to deliver
a
replication
or subsequent
pleadingwithin
the time
stated
in
rule 25
shall
be
ipso
facto barred. If any party fails to deliver any other
pleading within the time laid down in these rules or within any
extended time
allowed in terms thereof, any other party may by notice
served upon him require him to deliver such pleading within five days
after
the day upon which the notice is delivered. Any party failing
to deliver the pleading referred to in the notice within the time
therein required or within such further period as may be agreed
between the parties, shall be in default of filing such pleading,
and
ipso facto barred: Provided that for the purposes of this rule the
days between 16 December and 15 January, both inclusive
shall not be
counted in the time allowed for the delivery of any pleading."
21.
The plaintiff in its answering affidavit and in its heads of
argument, raised the point that Rule 26 is clear in that it
stipulates
that a
pleading
is to be filed within the
5-day period allotted by the notice of bar in terms of Rule 26. In
this respect, the plaintiff relies
on the specific wording of Rule 26
and the judgment in
McNally NO v Codron
2012 JDR 0385
(WCC).
22.
Yekiso, J, in
McNally,
[2]
supra,
held that it is trite
that an exception
is
a
pleading
and that an exception
may be filed within the
5-day period of
the
notice of bar, but differed from
Griffiths, AJ,
in
Landmark
Mthatha
(Pty)
Ltd
v
King
Sabata
Dalindyebo
Municipality
et
al:
In
re African Bulk
Earthworks (Pty) Ltd v Landmark Mthatha (Pty) Ltd et al
[3]
whether the notice in
terms
of
the
first
proviso
in
Rule
23(1)
satisfied
that
requirement.
[4]
23.
I
t
was
held
in
McNally,
supra,
that
a
party
may
only
file
a
notice
in terms
of
Rule
23(1)
within
the
initial
20-day
period
allowed
for
the
filing
of
a
plea
and
that it
was not
open
to a
party
to
follow
that procedure when a
notice of bar is served.
[5]
I
n
this regard the court
in
McNally
relied upon
the specific wording of Rule 23.
24.
The contrary was held
in
Felix
et
al v Notier NO et al (2)
.
[6]
25.
I am
in respectful
agreement
with the
findings
in this
regard of
Felix,
supra,
and
Landmark
Mbhatha,
supra.
To
hold
the
contrary,
as
in
McNal/y,
supra,
would
disentitle
a
party
after
the
initial
period
of
20
days
within
which
to
file
an
exception
where
the
pleading
is
vague and embarrassing to
thereafter
take
such an exception.
[7]
Such
party
would
have difficulty in pleading to the vague and embarrassing
allegations. It is trite that the very purpose of pleadings is to
crystallize the issues in dispute.
26.
It follows that the defendants were entitled to serve a notice in
terms of Rule 23(1) within the period allotted in the notice
of bar.
27.
Accordingly, the defendants' notice of intention to except served on
23 September 2015 complied with the notice of bar.
28.
The issue whether the defendants are entitled to condonation for the
late serving of the exception requires consideration.
29.
In this regard, the exception was filed at court, but not served upon
the plaintiff as dealt with above. The exception thus
had not been
"delivered" as required in terms of the rules.
30.
The defendants have explained why the exception was not "delivered"
as required. I have dealt therewith earlier in
this judgment. It is
clear that there had been no wilful delay in serving the exception
and that the defendants have shown good
cause for the delay. I
am satisfied that the defendants have sufficiently explained their
omission to serve the exception
timeously.
31.
It follows that the defendants are entitled that the late serving of
their exception be condoned.
32.
Mr de Beer requested that in the event that the defendants are
successful in obtaining condonation for the late serving of their
exception, an order is to be granted directing the manner in which
the exception is to be prosecuted. In this regard, the rules
of court
and the practice directive applicable in this Division, sufficiently
provides therefor.
I
grant the following order:
(a)
The defendants' late filing of the exception is condoned;
(b)
Costs of the application are costs in the main action.
_______________________
C
J VAN DER WESTHUIZEN
ACTING
HIGH
COURT
GAUTENG DIVISION
On
behalf of Applicants: J de
Beer
Instructed
by:
Philip Coetzer Inc.
On
behalf of Respondents: No appearance
Instructed
by:
[1]
Viljoen
v Federated
Trust
Ltd
1971(1)
SA 750(0) at 753F; see also
NKP
Kunsmisverspreiders
(Edms)
Bpk
v
Sentrale
Kunsmis
Korporasie
(Edms)Bpk
1
973(2)
SA
680 (T) at 6880
[2]
2012 JDR 0385 (WCC) at [9]
[3]
2010(3) SA 81 (ECM)
[4]
McNally,
supra,
at
[16] -[26];
Landmark
Mthatha, supra,
at
(7] and [20] - [21]
[5]
at [25] -
[27]
[6]
1994(4) SA
502
(SE)
at 5060-1;
see
also
Landmark
Mthatha,
supra,
at
[7] and [20] - [21]
[7]
Viljoen
v Federated Trust Ltd
1971(1)
SA
750
(0) at 753E-F