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[2015] ZAFSHC 28
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Smit and Others v Phumelela Local Municipality (5185/2011) [2015] ZAFSHC 28 (26 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number : 5185/2011
In
the matter between:-
DANIëL
JOHANNES SMIT
…....................................................................
1st
Applicant/Plaintiff
ANDRIES
JACOBUS KRUGER
…............................................................
2
nd
Applicant/Plaintiff
PHILLIPUS
STEFANUS KRUGER
….......................................................
3
rd
Applicant/Plaintiff
MARIA
MAGDALENA DU PLESSIS
…....................................................
4
th
Applicant/Plaintiff
and
PHUMELELA
LOCAL MUNICIPALITY
….............................................
Respondent/Defendant
CORAM:
VAN ZYL, J
DELIVERED
ON:
26 JANUARY 2015
[1]
The applicants are the plaintiffs in the main action and the
respondent is the defendant in the said action. For the sake of
convenience I will refer to the parties as in the main action.
[2]
The main action was enrolled for hearing on Tuesday, 19 August 2014,
and subsequent days, but it has since been removed from
the roll and
re-enrolled.
COURSE
OF PROCEDURAL EVENTS:
[3]
The pleadings in the main action consist of,
inter
alia
, the plaintiffs’ combined
summons and particulars of claim, the defendant’s plea thereto,
as well as a provisional
counterclaim.
[4]
The plaintiffs’ attorneys served a request for further
particulars, dated 2 May 2014, on the defendant’s attorneys
on
5 May 2014. The defendant did not respond to the said request,
whereupon the plaintiffs issued an application to,
inter
alia
, compel the defendant to reply to
the said request. In that application the plaintiffs furthermore
sought an order that the defendant
be compelled to reply to a Rule
37(4) questionnaire (which had also been served on the defendant on 5
May 2014), as well as to
respond to a Rule 35(3) notice (which had
been served on the defendant on 22 May 2014). On 3 July 2014
Mocumie J issued the
following order:
“
1.
The respondent, in his capacity as defendant in the main action
between the parties hereto, is ordered to serve and file within
10
days of service of this Court Order;
1.1
His reply to the plaintiffs’ request for further particulars
dated 2 May 2014 which was served on the respondent's
attorneys of
record and filed on 5 May 2014.
1.2
The defendant's reply to the plaintiffs’ Rule 37(4)
questionnaire which was served on the defendant's attorneys of
record and filed on 5 May 2014.
1.3
The defendant's response to the plaintiffs’ Rule 35(3) notice
dated 22 May 2014 which was served on the defendant's
attorneys on
22 May 2014.
2. The respondent
pays the applicants’ costs in this matter.
3.
Leave is granted to the applicants to approach this Court on the
same papers, duly amended as far as may be required, for an
order to
strike out the defendant’s notice of appearance to defend and
the defendant’s defence in the main action,
with costs, if the
respondent should fail to comply with paragraph 1 or paragraph 2
above.”
I
pause to mention that in my view the plaintiffs were not entitled to
an order regarding the Rule 37(4) questionnaire, but I will
leave it
at that.
[5]
The defendant failed to file its reply to the request for further
particulars, whereupon the plaintiffs launched the current
application on 4 August 2014 seeking an order that:
“
1.
The defendant’s notice of appearance to defend and plea in the
main action are hereby struck out;
2.
The respondent is ordered to pay the applicants’ costs in the
application on the basis as between attorney and own client,
alternatively on the scale as between party and party;
3.
For such further and/or alternative relief as the above Honourable
Court may deem meet.”
[6]
The defendant opposed the application and filed an answering
affidavit, in response to which the plaintiffs filed a replying
affidavit. The application was, after a postponement, due to be
heard on 4 September 2014. The plaintiffs filed their
heads of
argument on 27 August 2014. On 29 August 2014 the defendant
filed an additional affidavit, requesting that it should
serve both
as a founding affidavit in seeking leave to file an additional
affidavit and as the additional affidavit as such in
response to the
plaintiffs’ replying affidavit and heads of argument (
“
the
d
efendant’s additional
affidavit
”). The defendant
simultaneously filed its reply to the request for further
particulars, which reply was attached to
the additional affidavit as
annexure “A1”. The defendant also filed its heads
of argument on the same day.
On 4 September 2014 the
application was however postponed by agreement between the parties
and certain time frames were agreed
upon for the filing of,
inter
alia
, the plaintiffs’ answering
affidavit to the defendant’s additional affidavit and
furthermore the defendant’s
replying affidavit thereto, if any.
[7]
On 11 September 2014 the plaintiffs duly filed their answering
affidavit to the defendant’s additional affidavit (
“
the
plaintiffs’ additional affidavit
”)
and both parties filed supplementary heads of argument. The
defendant did not file a replying affidavit thereto.
[8]
It is evident from the plaintiffs’ Rule 37(4) questionnaire
that they addressed 34 questions/enquiries to the defendant.
In
the plaintiffs’ request for further particulars, the following
was stated in paragraph 1 thereof:
“
Insofar
as it may be contended that the Plaintiffs’ questions as
contained in the Rule 37 notice constitute requests for further
particulars rather than pre-trial questions, the Plaintiff repeats,
as if incorporated herein, all of such pre-trial questions.”
In
addition thereto, further requests were also made in four additional
paragraphs numbered 2 to 5. As stated earlier both
these
documents had been served on the defendant’s attorney of record
on 5 May 2014.
[9]
In response to the Court Order of 3 July 2014 by Mocumie J, the
defendant’s attorney of record filed a reply to the plaintiffs’
Rule 37(4) questionnaire, as well as a response to the plaintiffs’
Rule 35(3) notice, on 18 July 2014 and 17 July 2014 respectively.
No reply was filed to the request for further particulars. However,
the defendant opposed the instant application on the basis
that such
reply had indeed been filed. In this regard Mr Bahlekazi, the
defendant’s attorney of record, stated the
following in
paragraph 7.20 of the defendant’s answering affidavit:
“
In
the meantime the Rule 37 request and the request for further
particulars have also been answered and I append the reply hereto
as
annexures “O1” and “O2”.”
The
said annexure “O1” however consists of the plaintiffs’
Rule 37(4) questionnaire and their request for further
particulars,
whilst annexure “O2” is the defendant’s reply to
the plaintiffs’ Rule 37 questionnaire.
No reply to the
request for further particulars was attached to the answering
affidavit, as also alluded to by the plaintiffs in
their replying
affidavit.
[10]
In the defendant’s additional affidavit Mr Bahlekazi tendered
the following explanation and apology for this failure:
“
12.
After the heads were filed and the brief was delivered to Counsel
appearing for the respondent, I was requested to attend Counsel’s
chambers urgently. Counsel pointed out that he could not find the
reply to the Rule 21 request which should also form an annexure
to
the answering affidavit. He pointed out to me that this point was
also raised in the replying affidavit and was prominently
relied upon
in the heads of argument which was filed on behalf of the applicants
earlier the day (Wednesday, 27 August 2014). Counsel
requested me to
let him have a copy of the reply to the Rule 21 request which had
been filed and served.
13.
I explained to counsel that the same matters were dealt with in the
Rule 37 request and that the particulars had been supplied
in the
reply to the Rule 37 request, hence the instruction that the
requests had been complied with.
14.
....
15.
When the answering affidavit was drawn up, I instructed counsel that
the particulars had been supplied and I would attend to
attaching the
replies to the affidavit. ..
16.
During consultation on Wednesday, 27 August 2014, counsel however
drew my attention to the Rule 27 and 37 requests and pointed
out that
the first question in the Rule 21 request related to the matters
raised in the Rule 37 request, but that the further request
contained
in paragraph 2 to 5 appeared to be additional requests.
17.
I then realised that I had misread the request completely.
18.
This was truly an error in judgment on my behalf.
19.
I also understand why the applicant persists with the application.
20.
I can do no more than humbly beg that the Court not strike out the
respondent’s defence due to this
bona
fide
error by me.
21.
...
22.
The respondent tenders the applicants` taxed costs of this
application.
23.
The Rule 21 questionnaire will be filed and served simultaneously
with this affidavit and before this matter serves before the
Court. I
append the reply hereto as
Annexure
“A1”
.
24.
...
25.
I have also been informed by counsel that a reply should in any
event have been filed, even if the two requests contained
similar
content, even if just to refer to the particulars or replies already
advanced.
26.
I accept that it should have been done. I was content that the
particulars were advanced and that the Court Order had been complied
with. I laboured under the erroneous belief that the particulars were
answered and that there should not be any further prejudice
to the
applicants.
27.
I made a mistake and I am embarrassed about it. I tender my apology.
28.
I never intended to prejudice the applicants or disrespect this Court
or its orders. This was not obstructive conduct by the
respondent. It
was a lapse in my judgment and a wrong reading of the Rule 21
request.
29.
I respectfully submit that it is in the interest of justice that the
additional affidavit be received so that the matter can
be fully
canvassed and the Court appraised of all relevant facts when called
upon to exercise its discretion.
30.
...
31.
I respectfully submit that my conduct does not deserve that the
respondent no longer be able to defend this matter at trial
with the
advantages of evidence and cross-examination.
32. Wherefore I
respectfully pray that the application be dismissed and the
respondent be ordered to pay the taxed costs of the
application on
the scale as between attorney and client.”
.
See Application Papers, p. 80 – p.
83.
[11]
The plaintiffs’ additional affidavit, deposed to by the
plaintiffs’ attorney of record, Mr Herbst, contains,
inter
alia,
the following averments and legal
contentions on p. 129 – 135 of the application papers:
“
6.
A document which
purports to be a reply to the plaintiffs' request for further
particulars on trial was annexed as Annexure "
A1
" to
the "
founding and additional affidavit
" dated
29
August 2014
.
7.
As is evident from
the said document, it is abundantly clear that there was no proper
compliance with the order of Court dated 3
July 2014, with specific
reference to paragraph 4 of the plaintiffs' request for further
particulars and the last line of paragraph
5 thereof dated
2 May
2014
(see page 39 of the Pleadings Bundle).
8.
The plaintiffs are
gravely prejudiced by the inadequacy of the particulars, because the
trial particulars supplied do not conform
to the requirements which
further particulars for purposes of trail are designed to satisfy.
9.
The inadequate
particulars amounted in substance to no particulars at all.
10.
The provisional
counterclaim appears to be, if not entirely illusory, at least
nebulous in the extreme, and these criticisms are
applicable to the
plea as well.
11.
It
is nonsensical and incomprehensible how the defendant can hope to
establish any damages when it relies for its purported damages
on
contradictory and inherently inconsistent indications and
calculations, which render the plea and counterclaim vague and
embarrassing
in the extreme.
12.
I
refer to the following discrepancies:
12.1
ln paragraph 8.13 of the plea (on p. 35 of the Pleadings Bundle) it
is alleged that the respondent suffered damages in the
amount of
R6
million
, being the amount that the
defendant needs to pay to other service providers (auditors) to
rectify the defective services rendered
by the plaintiff. The
defendant added: ‘
Defendant refers
to its provisional counterclaim.
’
12.2 In clause 13
of the provisional counterclaim ( see p. 104 of the Pleadings Bundle)
it is stated as follows:
"
As
a result of the plaintiffs' breach of contract and defective services
rendered, the defendant suffered damages in the amount
of R6 000
000.00 consisting of the costs of a new service provider that
the defendant is obliged to appoint to rectify the
plaintiffs'
defective performance.
”
12.3 In paragraph 4
of the reply to plaintiffs' request in terms of Rule 21, (see
Annexure “
A1
”,p.86) it is stated as follows:
"
....To
date the amount of Rl 845 225.00 has been paid to rectify the
plaintiffs' defective service delivery and the rectification
process
is still not complete. The defendant will amend the plea and
provisional counterclaim to substitute the amounts claimed
with this
amount.
"
12.4
In Annexure "
A1
"
appended to the further particulars (p.89), the amounts set forth in
the "
ledger enquiry
"
amounts to
R1 845 225.00
.
12.5 The quotation
for the defective work to be remedied as referred to Annexure “
A1
”
to the Founding and Additional Affidavit by Bahlekazi (on page 111 of
the papers) amounts to
R1 108 536.00
.
13.
The
fact that these inadequate, insufficient and inconsistent particulars
were filed or would be allowed to be filed, has put the
plaintiffs in
a position worse than the one they were in before any reply was made
as ordered by the Court.
14.
The
defendant (the respondent) had recklessly embarked upon a
counterclaim which, judging from the inadequate, insufficient and
contradictory particulars supplied, it had not the slightest hope of
being able to prove.
15.
At
the hearing of this application, the applicants will therefore pray
not only for the striking out of the plea, but also for the
striking
out of the respondent`s provisional counterclaim under "
further
relief
" as prayed for. in prayer
(c) of the notice of motion.
16.
In
paragraph 8.13 of the plea (on page 35 of the pleadings) the
respondent refers to its provisional counterclaim, thereby indicating
that same should be read with its plea, and in fact incorporating
same into the the plea as if
mutatis
mutandis
set forth therein.
17.
The inadequacy of
the particulars has a direct bearing on the counterclaim for want of
non-compliance with the provisions of Rule
18(10), which provides
that a plaintiff suing for damages shall set them out in such manner
as will enable the defendant reasonably
to assess the
quantum
thereof.
18.
The
incomplete and defective statement by the respondent (the plaintiff
in reconvention) in paragraph 13 (see Bundle of Pleadings,
p. 104) of
the provisional counterclaim relating to its alleged damages, does
not comply with the peremptory provisions of Rule
18(10) and
accordingly constitutes an irregular pleading; and it is furthermore
excipiable and stands to be struck out.”
[12]
With regards to the additional affidavits, counsel were
ad
idem
that is is in the interest of
justice and fairness that leave be granted for the filing of the said
affidavits and that it should
be received in evidence. I concur with
their submissions in this regard and such leave is hereby granted.
[13]
From the aforesaid additional affidavit of the plaintiffs, also read
with their supplementary heads of argument, it is evident
that the
plaintiffs’ persistence with the current application is no
longer based upon the defendant’s initial failure
to reply to
the request for further particulars, nor upon the defendant’s
late reply thereto, but upon insufficient compliance
with the Court
Order of Mocumie, J of 3 July 2014. Mr Ploos van Amstel,
appearing on behalf of the plaintiffs, also confirmed
this during the
presentation of his argument. In my view this is a very
responsible attitude considering the explanation
by Mr Bahlekazi
regarding the circumstances that led to his failure to timeously file
the said reply in accordance with the Court
Order of 3 July 2014 and
his
bona fide
mistake in this regard. I accept his explanation and his
apology tendered to the Court. Insofar as it may be necessary, the
defendant’s late filing of its reply to the plaintiffs’
request for further particulars, is condoned.
[14]
In these circumstances the plaintiffs are not debarred from relying
on these “new” grounds for the relief sought,
moreover so
because these grounds have been fully canvassed in the papers. Mr
Snellenburg, appearing on behalf of the defendant,
did not attempt to
argue to the contrary either, in my view correctly so. See
THE
WANSON COMPANY OF SOUTH AFRICA (PTY) LTD v ESTABLISSEMENTS 17
CONSTRUCTION DE MATERIAL THERMIEQUE SOCIETE ANONYME
1976 (1) SA 275
(T) at 280 – 281.
CONTENTS
OF THE RELEVANT PLEADINGS:
[15]
In paragraphs 8.13 and 9.7 of the plea the following averments are
made:
“
8.13
As a result of the Plaintiffs' afore-mentioned breach of contract,
the Defendant suffered damages in the amount of R6 million
being the
amount that the Defendant needs to pay to other service providers
(auditors) to rectify the defective services rendered
by the
Plaintiff. Defendant refers to its Provisional Counterclaim.
9.7
The Plaintiffs breached the so-called second agreement by failing to
keep to the strict timelines causing the Defendant to suffer
damages
since the Defendant had to appoint another service provider to
complete the tasks and to render the services which were
not rendered
by the Plaintiffs.”
[16]
Paragraphs 4 and 5 of the plaintiffs’ request for further
particulars read as follows:
“
4.
With reference to paragraph 8.13 of the Plea, the Defendant is
required to provide full particulars of how the amount of R6m
is made
up (or alternatively any other such amount as the figure of R6m may
be amended to in due course) and to provide documentary
proof in
support thereof.
5.
With reference to paragraph 9.7 of the Plea, full particulars are
required of the replacement service provider(s) that the Defendant
allegedly appointed, including copies of all resolutions pertaining
to the appointment of such service provider(s), copies of agreements
entered into between the relevant parties, quotations provided by the
relevant service provider(s) as well as all and any documentary
proof
regarding the services rendered by such services provider(s).”
[17]
In response to both the aforesaid paragraphs the defendant stated as
follows in paragraph 4 of its reply:
“
The
Plaintiff is referred to Annexure “1” hereto, being a
summary of payments from the Defendant’s ledger as well
as
Annexure “2” regarding the replacement service provider
and resolutions pertaining to the appointment and the service
level
agreement. To date the amount of R1 845 225.00 has been
paid to rectify the Plaintiffs’ defective service
delivery and
the rectification process is still not complete. The Defendant will
amend the Plea and provisional counterclaim to
substitute the amounts
claimed with this amount.”
CONTENTIONS
ON BEHALF OF THE PLAINTIFFS:
[18]
Mr van Amstel, during his argument, repeated the legal arguments
already advanced in the plaintiffs’ additional affidavit.
I
therefore do not deem it necessary to repeat same herein. I will
however refer to the additional arguments presented by Mr van
Amstel
and the case law, if any, he relied upon.
[19]
Mr van Amstel referred to the aforesaid
WANSON
-judgment
and submitted, correctly so, that proper compliance with the order of
Mocumie J, means that the defendant was compelled
to respond to the
request for further particulars in a manner that complies with Rule
21(4); hence, such particulars as are
strictly necessary to
enable the plaintiffs to prepare for trial. In the said
judgment the following is stated at 279:
“
Such
an order does not mean that any form of reply will suffice, nor does
it mean that every particular request need be given.
The
applicant has the right in terms of the Rule to call for only such
particulars that may be strictly necessary for …preparation
for trial; and it is the duty of the respondent in terms of the
Rules to deliver them sufficiently, that is to supply those
particulars which were requested and which are strictly necessary for
the stated purpose. When the Court, therefore, orders
a
respondent to reply to the applicant’s request, it orders him
to do what the Rules require him to do.”
Mr
van Amstel subsequently submitted that the particulars provided by
the defendant are so inadequate and insufficient that they
do not
comply with the order of Mocumie J, as they do not conform to the
requirements which further particulars for purposes of
trial are
designed to satisfy. In this regard he referred to the
following remarks by Galgut, J in
THOMPSON
v BARCLAYS BANK D.C.O.
1965 (1) SA 365
(W) at 369:
“
In
examining the above contentions one should not overlook the purpose
of further particulars for trial, these are (a) to prevent
surprise;
(b) that the parties should be told with greater precision what the
other party is going to prove in order to enable
his opponent to
prepare his case to combat counter allegations….; (c) having
regard to the above, nevertheless not to tie
the other party down and
limit his case unfairly at the trial….”
[20]
It was submitted by Mr van Amstel that these inadequate, insufficient
and inconsistent particulars have put the plaintiffs
in a position
worse than the one they were in before any reply was provided at
all. As a result the plaintiffs are not in
a position to
prepare for trial and will not be able to proceed to trial without
the further particulars having been adequately
provided. Mr van
Amstel argued that the plaintiffs still do not know how the figure,
even the proposed amended figure, is
calculated as the plaintiffs
have not been informed in what respects their work has allegedly not
been properly done. The
plaintiffs did not provide particulars,
nor documentary proof, of which services were rendered by the other
service provider(s).
[21]
Mr van Amstel submitted that considering the history of this matter,
the defendant has shown a total disregard of its procedural
obligations in terms of the Rules of Court. Furthermore, by not
properly complying with the Court Order, the defendant knew
what the
plaintiffs remedy would be, namely the striking out of the
defendant’s notice of appearance to defend and its plea.
Despite this knowledge the defendant showed a total disdain for the
Rules of Court and the Court Order of Mocumie, J. In
view of
all these circumstances and relying on the
WANSON
-judgment,
Mr van Amstel contended that the defendant’s notice of
appearance to defend and its plea should be struck out.
Mr Van Amstel
also submitted that should I grant such an order, I should, as a
natural consequence of such an order, also grant
judgment in favour
of the plaintiff. (He furthermore contended that the defendant’s
provisional counterclaim should also
be struck out, but I will return
to this issue later herein.)
THE
DEFENDANTS CONTENTIONS:
[22]
Mr Snellenburg submitted that the history of this matter is not
indicative of a disregard by the defendant of the court rules
and its
procedural obligations. He referred in some detail to the
respective previous applications in support of his submission.
[23]
For his main contention as to why the relief sought by the plaintiffs
should not be granted, Mr Snellenburg referred to the
formulation of
paragraphs 4 and 5 of the request for further particulars. He
submitted that the manner in which those paragraphs
have been
formulated determines the nature of the answer thereto. He
pointed out that in paragraph 4 of the request the question
itself,
firstly, foreshadowed a possible amendment, and secondly, it only
requested details as to how the figure (or intended amended
figure)
is made up and documentary proof thereof, which details the defendant
provided.
[24]
With regard to the particulars requested in paragraph 5, Mr
Snellenburg submitted that the applicant did not ask which services
had been rendered by the other service provider(s) – they only
requested documentary proof regarding the services rendered
(which,
Mr Snellenburg submitted, strictly speaking should in any event have
rather been requested under Rule 35).
CONSIDERATION
OF SUBMISSIONS:
Ad
paragraph 4 of the request for further particulars:
[25]
Regarding the discrepancy in the amount of damages which the
plaintiffs referred to in paragraphs 12.1 to 12.4 of their additional
affidavit, it is evident from the defendant’s reply to the
request for further particulars that the defendant intends to
amend
the amount of damages, both in the plea and in the provisional
counterclaim in order to correspond with the figures reflected
in
Annexure “1” attached to the further particulars.
Mr Snellenburg in my view correctly argued that such an
amendment was
indeed foreseen by the plaintiffs in paragraph 4 of their request for
further particulars. The amendment will
therefore remove the
current discrepancies.
[26]
In paragraph 12.5 of their additional affidavit the plaintiffs
referred to a further alleged discrepancy. However, from
a
proper reading of the “
quotation
”
to which the plaintiffs refer, it is evident that the fee for the
project
“
amounts to R1 108 536-00
including VAT and disbursements for year period ending 30 June
2012”. See Application
Papers, p. 111. Underneath
the aforesaid where the detailed amounts are reflected, the column
dealing with disbursements
reads “disbursements (10% estimate)
with maximum of 25% of the project fees
”
.
This entry is already an indication that the total costs of the
remedial work would therefore not necessarily have been
restricted to
the amount of R1 108 536-00. I therefore do not
consider this figure to necessarily be contradictory
to the amount of
R1 845 225-00 just because it differs from one another.
Had proper (factual as opposed to or in
addition to documentary)
further particulars been requested by the plaintiffs (which aspect I
will deal with in more detail shortly),
this alleged discrepancy
could and would probably have been dealt with by the defendant.
[27]
The manner in which paragraph 4 of the plaintiffs’ request for
further particulars had been formulated, has the result
that the
essence of that request is to “provide full particulars of how
the amount of R6M is made up
”
.
No mention was made of the alleged defective services as such.
On a plain reading thereof it only refers to the calculation
of the
amount. The defendant responded to this by referring to the
payment of the total amount of R1 845 225-00
(the
contemplated amended figure) and also by referring to Annexure “1”
to the further particulars. Annexure
“1”, in my
view, indeed reflects the particulars of how the amount of R1
845 225-00 is made up. Nothing
more was requested from the
defendant, wherefore the defendant cannot be blamed for not having
provided any additional particulars
in this regard.
Ad
paragraph 5 of the request for further particulars:
[28]
When the formulation of paragraph 5 of the plaintiffs’ request
for further particulars is considered, it is in my view
evident that
the only factual particulars which were requested, are “full
particulars….. of the replacement service
provider(s) that the
defendant allegedly appointed
”
.
The rest of the request in paragraph 5 only deals with documents.
No factual particulars were requested regarding
the services which
the plaintiff had allegedly failed to perform and/or the alleged
services rendered by the other service provider.
[29]
I consequently have to agree with the argument of Mr Snellenburg that
the formulation of the respective requests determines
which
particulars the defendant was compelled to supply. In the
absence of any request for factual (as oppose to documentary)
particulars regarding the respective services, the defendant was
under no obligation to have supplied same.
[30]
I have to agree with Mr van Amstel’s convincing argument that
the current factual further particulars are inadequate
for the
plaintiffs to properly prepare for the trial. They unfortunately have
only themselves to blame. Had the request for
further
particulars been drafted more carefully and meticulously, the
plaintiffs would probably not have been in this unfortunate
and
frustrating situation.
[31]
Having said that, there is the remaining aspect regarding the
requested documentation. The plaintiffs did in fact request
“all and any documentary proof regarding the services rendered
by such service provider(s)
”
in
paragraph 5 of the request for further particulars. This
request was not complied with by the defendant as it failed to
attach
any such documents to its reply, nor did it aver that no such
documents exist. Although Mr Snellenburg raised the
issue that
such documents should have been requested in terms of Rule 35(3),
that was not the defendant’s response or “defence”
in its reply to the request, nor in the current application. In
my view it therefore cannot be entertained as a defence at
this late
state in the current proceedings.
[32]
The further contention of Mr Snellenburg was that it should be
considered whether the plaintiffs are indeed prejudiced by the
defendant’s failure to have supplied the documents regarding
the services the other service provider(s) rendered. In
this
regard he emphasised that the plaintiffs can only be prejudiced if
the documents regarding such services rendered are necessary
to
enable them to prepare for trial. I agree with Mr Snellenburg
that this aspect should indeed be considered. Although
the plea
regarding the plaintiffs’ defective performance was pleaded in
the alternative, it constitutes the defendant’s
main defence
should it be found that a valid agreement had in fact been concluded
between the parties. When one considers
the purpose of further
particulars for trial, it is evident to me that the requested
documents are very relevant and necessary
in order to remove the
element of surprise for the plaintiffs and to inform the plaintiffs
with greater precision what the defendants
are going to prove in
order for the plaintiffs to properly prepare their case to combat
counter allegations.
[33]
Mr Snellenburg argued that should it be found that the defendant
failed to supply the aforesaid documents and that they should
have
been supplied, it will be very drastic to close the Court’s
doors to the defendant by striking out its defence and counterclaim.
Mr Snellenberg submitted that I should exercise my discretion in
favour of the defendant by rather ordering the defendant to reply
to
that specific part of the request before a specified date.
[34]
Mr van Amstel, on the other hand, persisted with his argument that
the defendant’s notice of appearance to defend and
counterclaim
should be struck out (as well as its provisional counterclaim and
that further consequential relief should also be
granted).
[35]
I cannot agree with Mr van Amstel’s contention regarding the
striking out of the notice of appearance to defend and the
plea.
Considering the findings I have already made herein, the defendant’s
failure is confined to the single “group”
of documents
requested in the last line of paragraph 5 of the request for further
particulars. The defendant`s failure in this
regard should be seen
against the background of the plaintiffs’ failure to have
requested factual details regarding the services
rendered by the
other service provider(s). Had those documents been supplied,
the plaintiffs, on probabilities, would in
any event still have been
in need of the factual particulars (which had not been requested) as
well in order to properly prepare
for the trial.
[36]
In addition to the aforesaid, I also take into consideration that the
alleged repudiation of the agreement with the consequential
damages
is not the only defence advanced in the plea. Not only is the
locus standi
of the plaintiffs in dispute, but the defendant also disputes the
(valid) conclusion of the agreement as such and also raises payment
as a defence.
[37]
In these circumstances and in the exercising of my discretion I deem
it appropriate and the interest of justice to grant the
defendant a
further opportunity to reply to the aforesaid particular part of the
request for further particulars, but to also provide
the plaintiffs
with a remedy should the defendant fail to adhere to the relevant
order. Furthermore I also consider it practical
and in the interest
of justice to simultaneously grant the plaintiffs a further
opportunity to request further particulars pertaining
to the
defendant’s plea. This I deem apposite in an attempt to avoid a
situation where the plaintiffs, because of their initial
deficient
request, will possibly still not be in a proper position to prepare
for the trial despite having received the aforesaid
documentation
from the defendant.
[38]
In view of my findings already alluded to above, Mr van Amstel
persistent submission that the provisional counterclaim should
(also)
be struck out, cannot be adhered to. In addition thereto the
requested relief can in my view in any event not be entertained
considering,
inter alia
,
the following:
38.1
No further particulars were requested pertaining to the provisional
counterclaim as such. I regard the fact that the
defendant in
paragraph 8.13 of its plea referred to its provisional counterclaim
not enough to counter the aforesaid absence of
such a request.
The conditional counterclaim is a substantive and independent claim
on its own.
38.2
Mocumie J did not grant leave that the Court may be approached
regarding the striking out of the provisional counterclaim.
In
fact, in that application no relief was sought by the plaintiffs
regarding the provisional counterclaim at all.
38.3
The alleged non-compliance with Rule 18(10) should have been raised
by means of an exception at the pleading stage of the proceedings.
Non-compliance with Rule 18(10) was a relevant argument in earlier
years when a request for further particulars for purposes of
pleading
was still permissible, but in my view not in the case of particulars
for purposes of trial.
[39]
What I do however intend to do, is to specifically grant leave to the
plaintiffs to request further particulars pertaining
to the
defendant`s provisional counterclaim as well. Considering the history
of this action, it is clearly in the interest of the
administration
of justice that the parties hereto be assisted in the procedural
process of getting this matter ripe for trial in
order for it to be
finalised as soon as possible.
COSTS:
[40]
Mr van Amstel submitted that the defendant should be ordered to pay
the costs of the application on an attorney and client
scale (he did
not persist with the request for attorney and own client costs as
originally requested in the plaintiffs’ supplementary
heads of
argument). He submitted that it should be ordered as a mark of
disapproval of the defendant’s radical departure
from and
disregard of the basic rules of practice and procedure. He
furthermore contended that in the circumstances of this
case it is
fair and just to make such an order in an effort to ensure that the
plaintiffs should not be out of pocket for having
embarked upon
litigation as the defendant left them no other choice.
[41]
Mr Snellenburg conceded that because the plaintiffs were left with no
option but to have approached the Court by means of the
current
application for appropriate relief, the defendant should be ordered
to pay the costs of the application. Although
he also conceded
that it may be appropriate for me, in the exercising of my
discretion, to order that such costs are to be paid
on an attorney
and client scale, he submitted that should it be so ordered, it
should be done to ensure that the plaintiffs
are not out of
pocket in respect of expenses caused to them by this litigation, and
not as a form of punishment.
[42]
I agree that it is evident that the defendant’s failure to
firstly comply with the request for further particulars and
to
secondly provide all the requested particulars, necessitated this
application and thereafter the filing of the additional affidavits.
The conduct of the defendant and/or its attorney of record pertaining
to the circumstances that led to this application was not
of a nature
that I deem it necessary or appropriate to punish the defendant by
means of a punitive costs order. I do however
agree with Mr van
Amstel’s submission and Mr Snellenburg’s concession that
such an order is indeed appropriate in the
circumstances of this
application solely to ensure that the plaintiffs are recouped.
See
NEL v WATERBERG LANDBOUWERS
KO-OPERATIEWE VEREENIGING
1946 AD 597
at 607.
[43]
The following orders are therefore made:
1.
The respondent/defendant is ordered to
comply with the last sentence of paragraph 5 of the applicants’
/plaintiffs’
request for further particulars, being to provide
“
all and any documentary proof
regarding the services rendered by such services provider(s)”,
within 5 days of service
of this order on the
respondent’s/defendant’s attorney’s office.
2.
Leave is granted to the
applicants/plaintiffs to approach this Court on the same papers, duly
supplemented, for an order to strike
out the
respondent’s/defendant’s notice of appearance to defend
and its plea in the main action, with costs, should
the
respondent/defendant fail to comply with paragraph 1 above.
3.
Leave is granted to the
applicants/plaintiffs to file an additional request for further
particulars regarding the plea and/or the
provisional counterclaim of
the respondent/defendant, should they deem it necessary.
4.
The respondent/defendant is ordered to pay
the costs of the application on a scale as between attorney and
client.
______________
C.
VAN ZYL, J
On
behalf of Applicants/Plaintiffs: Adv C. Ploos van Amstel SC
Instructed
by:
Hill, McHardy &
Herbst Inc.
BLOEMFONTEIN
On
behalf of Respondent/Defendant: Adv N. Snellenburg
Instructed
by:
Bahlekazi
Attorneys
BLOEMFONTEIN