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[2015] ZAKZPHC 55
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Potpale Investments (Pty) Ltd v Mkhize (11711/2014) [2015] ZAKZPHC 55; 2016 (5) SA 96 (KZP) (15 December 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
Case No: 11711/2014
DATE: 15 DECEMBER
2015
REPORTABLE
In
the matter between:
POTPALE
INVESTMENTS (PTY)
LTD
..................................................................................
Plaintiff
And
NKANYISO
PHUMLANI
MKHIZE
.....................................................................................
Defendant
JUDGMENT
Gorven
J:
[1]
On 5 November 2013, the plaintiff sold a
Toyota Quantum Sesfikile 16 Seater vehicle (the vehicle) to the
defendant by way of a credit
agreement. The plaintiff retained
ownership of the vehicle and the defendant was obliged to pay
instalments and to procure and
keep in place insurance against the
loss of or damage to the vehicle. During August 2014, the plaintiff
instituted action against
the defendant seeking the following relief:
1
Confirmation of termination of the
agreement.
2
Return
of the vehicle.
3
Expenses
incurred for removal, valuation, storage and sale of the vehicle.
4
Attorney
and client costs.
[2]
The defendant entered an appearance to
defend. This prompted an application for summary judgment. An
opposing affidavit was delivered.
The defendant there takes the point
that a quotation, annexed to the particulars of claim, makes
reference to five documents which
are not annexed. The conclusion is
drawn that, as a result, the ‘plaintiff is simply not entitled
to any relief without disclosing
those documents and pleading those
relevant terms and conditions and the particulars of claim are vague
and embarrassing.’
[3]
The summary judgment application was set
down on the opposed role on 18 March 2015. On that date, a consent
order was taken in which
summary judgment was refused, the defendant
was granted leave to defend and the costs of the application were
reserved for decision
by the trial court. On 8 April 2015,
the plaintiff delivered a notice of its intention to amend the
particulars of claim
and the amendment was effected without
objection. The particulars of claim, as amended, pleaded as a breach
the failure of the
defendant to pay premiums in respect of two
insurance policies which he was obliged to take out. It also pleaded
that the defendant
had breached the agreement by failing to pay
instalments and that the arrears totalled R22 134.09.
[4]
After having been given
leave to defend on 18 March 2015, the defendant had 20 court days to
deliver ‘
a plea
with or without a claim in reconvention, or an exception with or
without application to strike out.’
[1]
This was not done.
It
was also not done within 20 days after the amendment was effected. On
26 May 2015, the plaintiff delivered a notice
under rule 26
(the rule 26 notice).
[2]
This required the defendant to deliver a plea within five days,
failing which he would be
ipso
facto
barred from
pleading. Instead, on 29 May 2015, the defendant delivered
a notice headed ‘Defendant’s Rule
35(12) and 35(14)
Notice’ (the rule 35 notice). This required the plaintiff to
make available for inspection and copying
the five documents
mentioned in the affidavit opposing summary judgment as well as the
two insurance proposal forms referred to
in the amended particulars
which gave rise to the insurance policies for which, the plaintiff
avers, the defendant failed to pay
premiums. No time limit was given
for compliance. The period of 5 days in the rule 26 notice
elapsed on 2 June 2015
without the defendant having
delivered a plea.
[5]
On 3 June 2015, the plaintiff applied for
default judgment under rule 31(5). On 4 June 2015, the defendant
delivered a document
headed ‘Defendant’s Notice in Terms
of Uniform Rules 30 and 30A’. This alleged that the plaintiff’s
notice
in terms of rule 31(5) constituted an irregular step on
the following grounds:
‘
1.
On 29 May 2015 the defendant delivered a notice in terms of Uniform
Rule 35 (12) and (14) requesting the production of certain
documents
in the plaintiff’s amended particulars of claim.
2. The
defendant is entitled to have sight of the documents requested under
Uniform Rules 35 (12) and (14)
before
he delivers his plea to
the plaintiff’s amended particulars of claim.
3. The
defendant is consequently not in default of delivery of his plea and
the plaintiff’s application for default judgment
and notice
under Uniform Rule 31 (5) are irregular and premature. The
plaintiff’s notice of bar did not preclude the defendant
from
seeking the production of the documents referred to in the
plaintiff’s amended particulars of claim under Uniform Rules
35
(12) and (14) and such notice suspended the defendant’s
obligation to plead.’
[3]
Rule 30A
reads:
‘
(1)
Where a party fails to comply with these rules or with a request made
or notice given pursuant thereto, any other party may
notify the
defaulting party that he or she intends, after the lapse of 10 days,
to apply for an order that such rule, notice or
request be complied
with or that the claim or defence be struck out.
(2) Failing
compliance within 10 days, application may on notice be made to the
court and the court may make such order thereon
as to it seems meet.’
It is
common cause that the plaintiff did not respond at all to the
rule 30A notice.
[6]
The plaintiff set down the application for
default judgment before the court on 27 July 2015. This
prompted the defendant
to launch what he termed an interlocutory
application, to be heard on the same day, for the following relief:
1
The
plaintiff’s notice in terms of rule 31(5) is set aside.
2
It
is declared that:
2.1 The
defendant is not barred from delivering a plea.
2.2 The
plaintiff is not entitled to apply for judgment by default against
the defendant, from the Registrar or the Court, until
the plaintiff
has responded to the defendant’s notice in terms of Uniform
Rule 35 (12) and (14) and the defendant thereafter
fails to deliver a
plea in the manner provided for in the Uniform Rules and/or in any
order of this Court.
3
The plaintiff is directed to deliver a
response to the defendant’s notice in terms of Uniform Rules 35
(12) and (14) within
five (5) days of the date of this order.
4
In the event that the plaintiff fails to
comply with the terms of paragraph 3 above, the defendant is granted
leave to apply to
this Court on the same papers, supplemented as far
as may be necessary, for an order dismissing the plaintiff’s
claim.
5
Subject to the plaintiff’s compliance
with the terms of paragraph 3 above, the defendant is authorised and
directed to deliver
a plea within 10 days of the date of receiving
the plaintiff’s response.
6
The
plaintiff is directed to pay the costs of this application.
This is
an application for relief under rule 30A. Two kinds of relief are
sought. The first seeks to set aside the application for
default
judgment as an irregular step. The second seeks to compel compliance
with the rule 35 notice.
[4]
It is opposed by the plaintiff.
[7]
The defendant does not say that he complied
with the rule 26 notice. H
e submits that
the delivery of the rule 35 notice suspended the time period given in
the rule 26 notice until such time as the documents
sought were made
available for inspection and copying. The affidavits for and against
the relief sought in the interlocutory application
were delivered by
the attorneys representing the parties and, in the main, amount only
to argument on the agreed facts set out
above.
[8]
The interlocutory application and the
application for default judgment were argued together. I shall refer
to the parties as the
plaintiff and the defendant respectively. The
parties agree that, if the relief sought in the interlocutory
application is granted,
the default judgment application cannot
succeed since this would necessitate a finding that the defendant is
not barred from delivering
a plea. It is therefore convenient to deal
with that application first. I shall address the contention that the
application for
default judgment amounted to an irregular step.
[9]
Rules 35(12) and (14) read as follows:
‘
(12)
Any party to any proceeding may at any time before the hearing
thereof deliver a notice as near as may be in accordance with
Form 15
in the First Schedule to any other party in whose pleadings or
affidavits reference is made to any document or tape recording
to
produce such document or tape recording for his inspection and to
permit him to make a copy or transcription thereof. Any party
failing
to comply with such notice shall not, save with the leave of the
court, use such document or tape recording in such proceeding
provided that any other party may use such document or tape
recording.
(14)
After appearance to defend has been entered, any party to any action
may, for purposes of pleading, require any other party
to make
available for inspection within five days a clearly specified
document or tape recording in his possession which is relevant
to a
reasonably anticipated issue in the action and to allow a copy or
transcription to be made thereof.’
Rule 26
provides as follows:
‘
Any
party who fails to deliver a replication or subsequent pleading
within 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.’
[10]
The crisp question is whether the delivery
of the rule 35 notice suspended the five day period given in the rule
26 notice in which
to deliver a plea. Apart from a comment made in a
textbook, which I will deal with later, I was not referred to any
authority directly
on point. I also did not come across any.
[11]
The defendant’s submission runs along
the following lines. He is entitled to deliver a notice in terms of
rule 35(12) at any
time before the hearing of a matter. The seven
documents were mentioned in the amended particulars of claim. He is
also entitled
to deliver a notice in terms of rule 35(14) at any
time after entering an appearance to defend. The notice may be issued
for
the purpose of pleading. The defendant has a right to inspect and
copy the documents before having to plead. He is therefore not
obliged to comply with the rules relating to the time within which to
plead until the notice has been complied with. The delivery
of the
rule 35 notice accordingly suspends the time period given in the
rule 26 notice.
[12]
The defendant calls in
aid certain authorities. In
Protea
Assurance Co Ltd & another v Waverley Agencies CC &
others
,
[5]
Marais J said:
‘
Applicant's
desire that second respondent should first have to file his affidavit
in response to the allegations made by Roberts
as to what second
respondent said to him during the telephone conversations which were
recorded on the tape before being allowed
to listen to the tape is
understandable as a forensic strategy, but to gratify it would be to
defeat the object of Rule 35(12).
That Rule plainly entitles a
litigant to see the whole of a document or tape recording and not
just the portion of it upon which
his adversary in the
litigation has chosen to rely. That entitlement, unlike the
entitlement to general discovery for which
Rule 35(1) provides, does
not arise only after the close of pleadings in a trial action, or
after both answering and replying affidavits
have been filed in
motion proceedings: it arises as soon as reference is made in the
pleading or affidavit to a document or tape
recording. It is inherent
in that that a litigant cannot ordinarily be told to draft and file
his own pleadings or affidavits
before he will be given an
opportunity to inspect and copy, or transcribe, a document or tape
recording referred to in his adversary's
pleading or affidavits.’
This was
referred to by approval by Thring J in
Unilever
plc & another v Polagric (Pty) Ltd
,
[6]
where he said:
‘
It
does not necessarily follow that the respondent should know what its
defence will be without having to inspect the applicants'
documents.
The respondent is not required to depose to or deliver its opposing
affidavits before it has been afforded an opportunity
of
inspecting and copying the documents referred to in Rule 35(12) . . .
[here he referred to the above passage from
Protea
Assurance
]. See
also
Erasmus v
Slomowitz (2)
1938
TPD 243
at 244. It is clear from these decisions that, otherwise than
is the case with discovery under Rule 35(1) and (2) read with Rule
35(13), a defendant or respondent does not have to wait until the
pleadings have been closed or his opposing affidavits have
been
delivered before exercising his right under Rule 35(12): he may do so
at any time before the hearing of the matter. It follows
that he may
do so before disclosing what his defence is, or even before he knows
what his defence, if any, is going to be. He is
entitled to have the
documents produced “for the specific purpose of
considering his position” (
Erasmus
v Slomowitz (2)
(supra
at 244); see also
Gehle
v McLoughlin
1986
(4) SA 543 (W)
at
546D - E). I conclude that the applicants' refusal to produce the
documents sought cannot be justified on this ground.’
[13]
In commenting on these
cases, and those referred to in them, DE Van Loggerenberg & E
Bertelsmann
Erasmus:
Superior Court Practice
,
[7]
conclude concerning rule 35(12):
‘
The
time period for the delivery of opposing affidavits (or a plea) is
therefore suspended pending the production of the documents
or
recordings referred to in the subrule.’
The
defendant says that the three relevant rules must be interpreted in
line with this statement. It is this which is relied on
as direct
authority for the defendant’s submission.
[14]
In
Protea
Assurance
, an interdict had been sought
against the respondents. Reference was made in the papers to a tape
recording and photographs. The
respondent, having delivered a
rule 35(12) notice, applied for the production of these
documents and also for a stay of the
application pending their
production and the delivery of further answering affidavits. One of
four bases of opposition to the application
was the contention of the
applicant that the respondent should be made to file an answering
affidavit before seeing the documents
in question. The court held
that ‘ordinarily’ a party should not be required to do so
without sight of a document referred
to in the opponent’s
pleading. It is noteworthy that the application to compel was
accompanied by one suspending the time
limits. No case was sought to
be made out that the delivery of the rule 35(12) notice
automatically had that effect.
[15]
Similarly, in
Unilever
,
the applicant had launched interdict proceedings based on an alleged
breach of its trademark by the respondent. The respondent
delivered a
rule 35(12) notice and, when the documents were not forthcoming,
applied to compel their production. The suspension
of time limits was
not mentioned. The defence of the applicant was stated in these
terms:
‘
I
dispute that it was necessary for the respondent to inspect the
applicants' archives and records in order to conduct its defence.
In
this regard I submit that the respondent should know what its
defence will be without having to inspect the applicants'
archives or
records.’
It is this
contention which prompted Thring J to hold:
‘
The
respondent is not required to depose to or deliver its opposing
affidavits before it has been afforded an opportunity of
inspecting and copying the documents referred to in Rule 35(12)’.
[16]
The gravamen of the judgments relied on by
the defendant is that the rule may be invoked prior to the disclosure
of a defence. Neither
of them deals with the issue before me
concerning the suspension of time periods by way of delivery of a
rule 35(12) or (14)
notice.
[17]
It is necessary to
construe the rules to evaluate the proposition in
Erasmus
referred to above. The approach to be taken has been restated on a
number of occasions recently by the Supreme Court of Appeal.
[8]
The Constitutional
Court, in
Cool Ideas
1186 CC v Hubbard & another
,
[9]
put it this way:
‘
A
fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical meaning,
unless to
do so would result in an absurdity. There are three important
interrelated riders to this general principle, namely:
(a) that
statutory provisions should always be interpreted purposively;
(b) the
relevant statutory provision must be properly contextualised; and
(c) all
statutes must be construed consistently with the Constitution, that
is, where reasonably possible, legislative provisions
ought to be
interpreted to preserve their constitutional validity. This proviso
to the general principle is closely related to
the purposive approach
referred to in (a).
’
[10]
[18]
The rules in question nowhere say that
delivery of a notice in terms of rule 35(12) or (14) suspends
the period referred to
in rule 26 or any other rule. There are
sanctions attaching to non-compliance with some parts of rule 35.
That of rule 35(12),
for example, is that the non-compliant
party may not use the documents in question. Where documents have
been appropriately referred
to, in other words where they are an
integral part of the case of the party concerned, the likely result
of this sanction would
be that that party would not be able to prove
its case. A further sanction is that a non-compliant party becomes
subject to the
provisions of rule 30A. In that way, if a case is
made out, production of the documents can be compelled. Rule 26
provides
that the period between 16 December and 15 January must not
be counted in calculating the time allowed for compliance. There is
no reference in that, or any other, rule that delivery of a notice in
terms of rule 35(12) or (14) has any such effect. In
the light
of the specific mention of the period between 16 December and 15
January, one would expect such a reference if the contention
of the
defendant is correct.
[19]
The purpose of the rules is to govern
procedural matters relating to litigation. They set standardised time
limits within which
parties must take certain steps. This relieves
the court from having to do so in each case. Where a litigant in
unable to comply
with the rules, both rule 27 and the common law
jurisdiction of a high court to govern its own procedures empower a
court
to condone non-compliance. The standardised time limits are,
therefore, not immutable. Where time limits cannot be complied with,
the court may extend them. An adoption of the plain, grammatical,
meaning of the rules in question, in the light of the purpose
of the
rules, does not lead to any absurdity. This does not support the
statement in
Erasmus
.
[20]
The defendant says that it has a right to
the production of the documents and that this would be negated if the
time to deliver
a plea was not suspended. This is not so. In the
first place, n
either
Protea
Assurance
nor
Unilever
held that the entitlement to the documents was absolute and that, by
necessary implication, the time to put up a plea or affidavit
was
suspended until the notice had been complied with. Secondly, the
defendant is not without remedy.
As was
done in
Protea Assurance
,
and as is pertinently provided for in rule 27(1) and (2), the
defendant could have applied to extend the time limits within
which
to deliver the plea and have brought an application to compel. He
chose not to do so.
[21]
The plaintiff relies on
Hawker v Prudential
Assurance Co of South Africa Ltd
,
[11]
in support of its stance that
the rule 35 notice did not suspend the period for delivering the
plea. In that matter, further particulars
were sought for the
purposes of delivering a plea, as was allowed at the time. Further
particulars were supplied but were inadequate.
The defendant then
applied, outside of the time within which to deliver his plea but
before any notice of bar was delivered, to
compel their delivery. It
was submitted that the application was out of time. The court
reasoned as follows:
‘
It
is implicit in Rule 21(1) that the pleading in respect of which
further particulars may be requested is incomplete, in the sense
that
it is envisaged that further particulars are necessary to enable the
party requesting the particulars to plead and/or to tender
an
amount in settlement. Where the words “the particulars”
are used in Rule 21(3), this must be construed as meaning
“the
particulars envisaged in Rule 21(1)” for, until such
particulars are furnished, the party who requested the further
particulars must be regarded as being unable to plead and/or to
tender an amount in settlement.’
[12]
Applying this
reasoning to the application at hand, the court went on to hold:
‘
It
follows from the aforegoing that in my view a defendant is not
obliged to take any further step when particulars have been refused
or inadequate particulars have been furnished and the particulars are
strictly necessary for the purposes envisaged by Rule
21(1).
Should the plaintiff in such circumstances, and upon expiration of
the 14-day period mentioned in Rule 21(3), deliver a
demand for plea
in accordance with the provisions of Rule 26, the defendant has an
election. He can either attempt to plead, or
he can make application
in terms of Rule 21(6) for an order compelling the plaintiff to
furnish the particulars requested. The
latter application would
naturally be coupled with an application for an order extending
the barring period.’
[13]
[22]
The reasoning, accordingly, is that,
without the requested necessary particulars it was not possible to
plead. In other words, the
defendant was entitled to the particulars
before being required to plead. This mirrors the submission in the
present matter that
the defendant was entitled to inspect and copy
the documents before being obliged to plead.
Hawker
,
however, held that if the defendant was placed on bar, he was obliged
either to plead or to apply to compel the particulars. Where
he did
plead, the bar would not fall. Where he did not do so but brought an
application, the court considered that it was axiomatic
that an
application to extend the time to plead would accompany the
application to compel. If this were not done, the clear implication
is that the defendant would find himself barred from delivering a
plea and subject to a default judgment. It is clear that the
court
did not regard the bringing of the application (let alone the request
for further particulars) as suspending the time period
under rule 26.
[23]
This reasoning commends itself to me as
applying equally to the present matter. The delivery of the rule 35
notice did not suspend
the period in which the defendant was obliged
to deliver a plea or other document referred to in rule 22. When he
was confronted
with a rule 26 notice, he was put to an election.
He could either have done his best to plead and so have defeated the
bar
or he could have applied to extend the time within which to plead
and to compel production of the documents for that purpose. If
he had
pleaded, it would have been open to him to apply to compel delivery
of the documents and, if so advised, to thereafter seek
to amend his
plea. Since he did not plead or apply to extend the period in which
to do so, he was
ipso facto
barred on 2 June 2015. There is therefore no basis for contending
that setting down the application for default judgment amounted
to an
irregular step. The interlocutory application must be dismissed as
regards that relief.
[24]
I turn to consider that part of the
interlocutory application where the defendant seeks to compel a
response to the rule 35
notice.
On a
procedural level, the rule 30A notice of the defendant does not
specify, as an irregular step, the failure of the plaintiff
to
provide the documents. I have set out the grounds of irregularity
relied on by the defendant above. None of them relates to
the failure
to comply with the rule 35 notice. Notice of the irregularity
relied on must form part of a rule 30A notice
prior to an
application to compel. This was not given. As such, the relief sought
to compel a response to the rule 35 notice
is not competent. The
interlocutory application must therefore be dismissed.
[25]
The plaintiff applies for default judgment.
It is applied for under rule 31(5). This rule provides as
follows:
‘
(5)
(a)
Whenever
a defendant is in default of delivery of notice of intention to
defend or of a plea, the plaintiff, if he or she
wishes to obtain
judgment by default, shall where each of the claims is for a debt or
liquidated demand, file with the registrar
a written application for
judgment against such defendant: Provided that when a defendant is in
default of delivery of a plea,
the plaintiff shall give such
defendant not less than 5 days' notice of his or her intention to
apply for default judgment.
(b)
The
registrar may—
(i) grant
judgment as requested;
(ii) grant
judgment for part of the claim only or on amended terms;
(iii) refuse
judgment wholly or in part;
(iv) postpone
the application for judgment on such terms as he or she may consider
just;
(v) request
or receive oral or written submissions;
(vi) require
that the matter be set down for hearing in open court.
Provided that
if the application is for an order declaring residential property
specially executable, the registrar must refer such
application to
the court.’
The
application was made to the registrar. No reason has been given why
the registrar cannot deal with it. The registrar has not
referred the
application to court; the plaintiff simply set it down before the
court without the registrar having dealt with it.
This was not
competent. The application for default judgment is thus not properly
before me and must be struck from the roll. There
is also no reason
why the defendant should not recover attorney and client costs
arising from the set down before court.
[26]
During argument, the defendant applied from
the bar for an adjournment to the application for default judgment in
the event of my
dismissing the interlocutory application. The reason
given was that, if the defendant is wrong in his contention that the
delivery
of the rule 35 notice suspended the time period given in the
rule 26 notice, he should be given the opportunity to launch an
application
in terms of rule 27(1) and (2) to extend the time limit
for delivery of the plea and to condone his failure to do so. Since
the
application for default judgment is to be struck from the roll,
it is not necessary to consider this application.
[27]
In the result I make the following orders:
1.
The interlocutory application brought by
the defendant is dismissed with costs, such costs to be taxed on the
scale as between attorney
and client.
2.
The application for default judgment
brought by the plaintiff is struck off the roll and the plaintiff is
directed to pay the costs
arising from its having been set down
before the court, such costs to be taxed on the scale as between
attorney and client.
GORVEN
J
DATE OF
HEARING: 26 November 2015
DATE OF
JUDGMENT: 15 December 2015
FOR
THE PLAINTIFF: S Franke, instructed by Marie-Lou Bester, locally
represented by Nicholson & Hainsworth Attorneys.
FOR
THE DEFENDANT: H Gani, instructed by Pather & Pather Attorneys,
locally represented by Ayoob Attorneys.
[1]
Rule 22(1) of the Uniform
Rules of Court (the rules). Although other documents could be
delivered, I shall hereafter simply refer
to a plea.
[2]
The provisions of this rule
shall be dealt with below.
[3]
His emphasis.
[4]
Centre for Child Law v
Governing Body of Hoërskool Fochville & another
[2015] 4 All SA 571
(SCA) para 18.
[5]
Protea Assurance Co Ltd &
another v Waverley Agencies CC & others
1994
(3) SA 247
(C)
at
249B - D
[6]
Unilever plc & another
v Polagric (Pty) Ltd
2001
(2) SA 329
(C) at 336C–I.
[7]
DE Van Loggerenberg & E
Bertelsmann
Erasmus:
Superior Court Practice
(2 Ed) Vol 2 at D1-478.
[8]
KPMG Chartered Accountants
(SA) v Securefin Ltd and Another
2009
(4) SA 399
(SCA) ([2009]
2 All SA 523)
para 39;
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) ([2012]
ZASCA 13) para 18;
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA)
([2013] ZASCA 176) para 12.
[9]
Cool
Ideas 1186 CC v Hubbard & Another
2014 (4) SA 474
(CC) para 28.
[10]
References omitted.
[11]
Hawker v Prudential
Assurance Co of South Africa Ltd
1987 (4) SA 442
(C).
[12]
At 448E-H.
[13]
At 449B-C.