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[2016] ZAGPPHC 1010
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ICT Globe Management (Pty) Ltd v MCT Telecommunications (Pty) Ltd (45176/2015) [2016] ZAGPPHC 1010 (14 October 2016)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 45176/2015
DATE
OF HEARING: 10 OCTOBER 2016
DATE
OF JUDGMENT: 14 OCTOBER 2016
Reportable:
No
Of
interest to other judges: No
Revised.
In the matter between:
ICT
GLOBE MANAGEMENT (PTY)
LTD
Applicant
and
MCT
TELECOMMUNICATIONS (PTY)
LTD
Respondent
CORAM:
Avvakoumides AJ
JUDGMENT
AVVAKOUMIDES,
AJ
[1]
This is an application for the upliftment of a notice in terms of
rule 26 of the Uniform rules of court. The respondent (plaintiff)
issued summons against the applicant (defendant). Certain documents
were annexed to the summons as annexures, which are the same
annexures forming part of the respondent's complaint against the
application on the basis that these were not legible and some
were
not attached.
[2]
After the summary judgment application, when leave was granted to
defend, the respondent filed a notice to amend its pleadings.
Such
amendment was objected to. The respondent brought an application in
terms of rule 28 (4). The applicant did not oppose the
application
despite having objected to the proposed amendment. The order sought
to amend the pleadings was granted and the respondent
filed the
amended pages. The applicant alleges that the amended pages were
delivered late and as such the amendment lapsed. The
respondent on
the other hand adopted the stance that the amended pages were in time
and as such the applicant had to file its plea.
[3]
Having not filed a plea and having relied upon its rule 35 (12)
notice calling for the inspection of certain document, which
are the
same as the documents attached to the summons and ventilated at the
summary judgment stage, the respondent filed a notice
in terms of
rule 26 calling upon the applicant to file its plea. The
dies
in
terms of the rule 26 notice expired and the parties' attorneys each
contending that they were right in interpreting the legal
position
vis
a
vis
the amendment being effected immediately by
the court or not, and the days within which the amendment pages were
filed.
[4]
In the process various notices in terms of rule 30 and rule 30A were
filed leading up to this application. Ms Schoeman who appeared
for
the respondent submitted that the amended pages were not late because
the court order had the effect of effecting the amendment
sought
immediately. Mr Van Vuuren for the applicant submitted, quite
correctly with reference to rule 28 (6), that the sub-rule
is clear
that the court merely authorizes an amendment and that the amendment
only takes effect when the steps prescribed in rule
28 (7) have been
taken within the applicable time limits. This is of course unless the
court orders the amendment to take effect
immediately.
[5]
Neither Ms Schoeman, nor Mr Van Vuuren, was able to show me the court
order in respect of the amendment. Having considered the
papers filed
herein and having considered the submissions made by counsel I am of
the view that logic must prevail in order to
get the litigation on
its way. In order to achieve this result I am of the view that the
appropriate order herein would be to uplift
the notice in terms of
rule 26 and to simultaneously order the inspection of the documents
sought by the respondent within a period
of time followed by the
filing of the plea.
[6]
In the premises I make the following order:
[6.1] The notice in terms of rule 26
dated 16 February 2016 is hereby uplifted.
[6.2] The respondent is ordered to
make available all the documents listed in the applicant's notice in
terms of rule 35 (12) dated
3 February 2016 within 10 days of this
order and to the extent necessary to provide legible copies of such
documents to the applicant.
[6.3] The applicant is ordered to file
its plea within 10 days of inspecting or receiving, copies of the
documents listed in paragraph
6.2, as the case maybe.
[6.4] The costs of this application
shall be costs in the cause.
________________________
G.
T. AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
DATE:
14 OCTOBER 2016
Representation for
Applicant:
Counsel:
S. M. Van Vuuren
Instructed
by:
Van Zyl's Attorneys
Representation
for the Respondent:
Counsel:
A. J. Schoeman
Instructed
by:
Roestoff & Kruse