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[2015] ZAGPPHC 46
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Absa Bank Limited v Meiring N.O. and Others (69860/2013) [2015] ZAGPPHC 46 (3 February 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 69860 /
2013
DATE: 3 FEBRUARY
2015
In the matter
between:
ABSA BANK
LIMITED
................................................................................
PLAINTIFF
and
GEORGE LODEWYK
MEIRING (N.O)
IDENTITY NO: [...]
In his capacity as
trustee of the:
DAARDOER
TRUST IT 6553 / 1998
…..........................................
1
st
DEFENDANT
ANNA MARIA
GERTUIDA MEIRING (N.O)
IDENTITY NO: [...]
In her capacity as
trustee of the:
DAARDOER TRUST IT
6553 / 1998
...........................................
2
nd
DEFENDANT
JUDGMENT
LEBALA AJ:
1.1 This is an
application in terms of rule 30A of the uniform rules of court. The
applicant is the plaintiff in the main matter.
The respondents are
the defendants in the main matter. The parties will be addressed as
plaintiff and defendants in this judgment.
1.2 The plaintiff
filed a notice to remove the complaint in terms of the uniform rules
of court. The nub of the complaint goes to
the root of the
defendants' plea. In the notice to remove the complaint the plaintiff
avers that the defendants' plea fails to
comply with rule 18 (6) of
the uniform rules of court in that the plea the does not state the
following:
(i) when the
agreement between the parties was concluded;
(ii) where was the
agreement concluded;
(iii) by whom was
the agreement concluded;
(iv) whether the
agreement is written or oral.
1.3 This notice to
remove complaint is dated 14 May 2014. It was served on the
defendants' attorneys during 16 May 2014. The defendants
did not
answer the notice to remove the complaint as envisaged from them by
the rules of court. The defendants did nothing at this
stage.
1.4 As alluded
hereinbefore, the plaintiff subsequently brought an application in
terms of rule 30A. It is this rule 30A application
which is the
subject of dispute before court.
2
.
2.1 In its rule 30A
application, the plaintiff asked for the following prayers:
2.1.1 that the
defendants' plea be struck;
2.1.2 alternatively
to prayer 1, that the defendants be ordered to rectify their plea
within 10 (ten) days after granting of this
order;
2.1.3 Costs of this
application.
2.2 The rule 30A
application is dated 07 July 2014. The affidavit thereto has been
sworn and commissioned on the 08 July 2014. The
rule 30A application
was served on defendants' attorneys on the 15 July 2014.
2.3 It is worth
noting that the defendants instead of removing the complaint,
proceeded to file opposing affidavits dated 05 August
2014. These
affidavits were served on the plaintiff's attorneys on the selfsame
date of 05 August 2014. In their affidavits, the
defendants challenge
the authority of the deponent to the plaintiff's affidavit to rule
30A application. The defendants further
deny that they have
contravened rule 18(6) as alleged by plaintiff. The defendants
proceed to provide the details raised in the
notice to remove
complaint in their affidavits. The defendants also asked that the
plaintiff's rule 30A application be dismissed
with costs as between
attorney and own client.
2.4 The plaintiff
filed a replying affidavit in which it avers that the deponent to its
papers is the attorney of record who is
duly authorised to act on its
behalf. The plaintiff further avers that the deponent has in depth
knowledge of the pleadings exchanged
in this matter as he drafted the
papers himself. On this basis, the deponent has the necessary
personal knowledge entitling him
to depose to the affidavit in
support of the rule 30A application. The deponent reiterates the fact
that the defendants are in
contravention of the provisions of rule
18(6) and whatever detail regarding the agreement being advanced in
the opposing affidavit
must be made in the pleadings. Accordingly,
the defendants should have simply amended their plea so as to bring
it in line with
the requirements of rule 18(6).
3.
3.1 The plaintiff
has filed a practice note and heads of argument. The defendant has
not. In its practice note, the plaintiff provides
that this matter is
set to proceed on an unopposed basis.
3.2 The defendants
sent counsel to appear on their behalf before court. On this basis, I
allowed the matter to proceed on an opposed
basis.
CONTENTIONS
PLAINTIFF'S
4.
4.1 The plaintiff
contends that its rule 30A application is not an application on the
merits of its claim against the defendants,
but one to urge the
latter to remove a complaint in their pleadings. Accordingly, the
plaintiff needs not prove anything other
than non-compliance with the
uniform rules of court.
4.2 The plaintiff
further contends that the mere fact that the defendants are
endeavouring to place evidence before court by way
of their opposing
affidavit as opposed to filing a proper plea amounts to an irregular
step and/or non-compliance with the uniform
rules of court.
4.3 The plaintiff
contends that a mere fact that the defendants are attempting to cure
the defect in the pleadings by setting out
detail regarding the
alleged agreement between the parties in the opposing affidavit
instead of a plea is indicative of their non-compliance
with rule
18(6). Accordingly, the defendants still need to amend their plea so
as to cure the formal defect therein. As the pleading
stands, it is
still an embarrassment to answer to and the defendants cannot attempt
to cure the defect by way of reference to their
opposing affidavit.
DEFENDANTS'
SUBMISSIONS
5.
5.1 At the outset,
the defendants abandoned their request for costs on attorney and own
client scale.
5.2 The nub of the
defendants' submissions is that the plaintiff should not have
proceeded in terms of rule 30(A) but in terms of
rule 30. According
to the defendants, their non-compliance with the provisions of rule
18(6) does not entitle the plaintiff to
proceed by way of rule 30A
but by way of rule 30. This is so as rule 18(12) is specific that if
a party fails to comply with any
of the provisions of rule 18, such a
pleading shall be deemed to be an irregular step and the opposite
party shall be entitled
to act in accordance with rule 30. The
defendants contend that the plaintiff ought to have proceeded by way
of rule 30 and not
rule 30A.
5.3 The defendants
further contend that rule 30A applies where there is no provision in
the rules stating that it should be followed
unlike in rule 18 which
is specific that noncompliance with the latter rule entitles the
opposite party to act in accordance with
rule 30.
5.4 The defendants
further contend that the plaintiff's rule 30A application should be
dismissed with costs. They further contend
that there is no prejudice
to the plaintiff and as a result prayer 1 of the notice of motion
should not be granted. According to
the defendants, prayer 2 would be
a better legal recourse for the plaintiff.
ANALYSIS
6
.
6.1 The concession
by the defendants that prayer 2 would be a better legal recourse for
the plaintiff is an admission on their part
that they have not
complied with the uniform rules of court.
6.2 Despite the
defendants' counsel spirited and persuasive submissions of drawing a
distinction between rule 30A irregular procedure
and rule 30
irregular procedure, the defendants still do not comply with the
uniform rules of court. It is not in dispute that
the defendants are
in contravention of rule 18(6). The only dispute is whether the
plaintiff's remedy should be found in rule 30A
or rule 30?
6.3 It should be
borne in mind that the plaintiff's rule 30A application is not an
application on the merits of the plaintiff's
claim against the
defendants. I am persuaded that the plaintiff's rule 30A application
is a procedural step intended to exhort
the defendants to remove a
complaint in their pleading. I am further persuaded that at this
stage, the plaintiff need not prove
anything other than
non-compliance with the uniform rules of court. I am persuaded by
plaintiffs submission that the conduct of
the defendants of placing
evidence before court by way of their opposing affidavit instead of
filing a proper plea on its own amounts
to an irregular step and/or
non-compliance on the part of the defendants with the uniform rules
of court.
6.4 Despite the
defendants' brilliant and spirited submissions, I am not persuaded
that they should be permitted to hide behind
the distinction between
the application of rule 30A and rule 30. This is so as the law
requires reasonable, not perfect lucidity.
See
: R v Timber Co (Pty) Ltd (distinguishable)
1
6.5 Equally
important, is the fact that the defendants' counsel brilliant and
spirited submissions seek to establish a test that
the distinction
between rule 30A and rule 30 should be ideal. This can't be so. In S
v Dzukuda and Others, S v Tshilo, (distinguishable)
Ackermann J said:
"The test
is not whether the procedure is ideal, but whether it is fair"
2
6.6 Of significance
also is the impression created by the defendants that the issues of
contention between them and the plaintiff
has to be regulated outside
the rules of court and only between the parties. This observation is
informed by the defendants' supine
approach towards the rules of
court. It is apposite at this stage to allude that:
"The
rules of court, which constitute the procedural machinery of the
courts, are intended to expedite the business of the
courts"
See:
SOS Kinderdorf International v Effie Lentin Architects
3
(distinguishable)
The
words of Van Winsen AJA in Federated Trust Ltd v Botha are apposite
4
.
“
The
rules are not an end in themselves to be observed for their own sake.
They are provided to secure the inexpensive and expeditious
completion of litigation before the courts
”
.
The court went
further to say:
“
Where
one or other of the parties has failed to comply with the
requirements of the rules or an order made in terms thereof and
prejudice has thereby been caused to his opponent, it should be the
court’s endeavour to remedy such prejudice in a manner
appropriate to the circumstance, always bearing in mind the object
for which the rules were designed. See in this regard the remarks
of
Schreiner JA in Trans-African Insurance Co Ltd v Maluleka
1956 (2) SA
273
(A)"
See
also: Imprefed (Pty) Ltd v National Transport Commission
5
6.7 It is manifest
that the plaintiff has already afforded the defendants an opportunity
to remove the cause of complaint. This
conduct on the part of the
defendants undoubtedly prejudices the plaintiff. The plaintiff needs
a remedy to go into the main case
to prove its case against the
defendants. The defendants cannot be permitted to hide behind the
veil of their counsel's brilliant
and spirited submissions without
complying with the uniform rules of court.
6.8 However, in my
view this does not mean that the defendants are not entitled and/or
should not be permitted to contest a case
presented against them by
the plaintiff. This is what informs the order hereinbelow.
7.
7.1 From the
aforegoing, I make the following order:
7.1.1 the defendants
to rectify their plea within 15 (fifteen) days after the granting of
this order;
7.1.2 the defendants
to pay costs of this application.
LEBALA, AJ
JUDGE OF THE HIGH COURT
1
1950(3)
SA 163 A
2
2000(4)
SA 1078, CC (distinguishable)
3
1993
(2)SA481 (Nm) at491 D-E
4
1978
(3) SA 645
(A) at 654 D
5
1993(3)
SA 94 at page 107 D - E