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[2013] ZAGPPHC 286
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Absa bank Ltd v Phenyo General Supply CC + 1 (45466/12) [2013] ZAGPPHC 286 (11 October 2013)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
no: 45446/12
DATE:
11/10/2013
In the matter between:
ABSA
BANK
LIMITED
........................................................................
APPLICANT
and
PHENYO GENERAL SUPPLY CC +
1
.........................................
RESPONDENT
JUDGMENT
HASSIM
A AJ
1.
This is an application brought in terms of Rule 30(1) of the Uniform
Rules of the High Court. The applicant (plaintiff in the
main action)
issued a simple summons against the First and Second Respondents.
2.
The applicant seeks to set aside the plea and counterclaim that was
filed by the respondents. The applicant contends that these
pleadings
were an irregular step in that the applicant's declaration had not
yet been filed. During the hearing counsel for the
applicant conceded
that the applicant was probably out of time for filing the
declaration. Applicant requests that the plea and
counterclaim be set
aside and that the applicant be permitted to file a declaration. It
is common cause between the parties that
leave to defend was granted
on 26 October 2012. The plea and counterclaim was delivered on 8
November 2012. The applicant afforded
the respondents the opportunity
to remove the cause of complaint on 14 November 2012.
3.
The respondents did not file heads of argument in this matter, nor
was there any appearance for the respondents. The position
of the
respondents, however, is evident from the record. In their notice
objecting to the Rule 30 notice by the Applicant, the
respondents
contend that the plaintiff is not entitled to file a declaration
because the summons was a combined summons. Rule 20
of the Uniform
Rules of the High Court provides that a plaintiff may deliver a
declaration within 15 days of receipt of a notice
of intention to
defend, 'except in the case of a combined summons'. Rule 1 of the
Uniform Rules defines a combined summons as "a
summons with a
statement of claim annexed thereto in terms of subrule (2) of rule
17/'
4.
The applicant's counsel contends firstly, that the summons is clearly
a simple summons because it is headed so; and second, that
the
particulars of claim were not 'annexed' to the summons but instead is
part of the body of the summons. This is evident from
the form of the
document. While there is a heading that reads 'particulars of claim',
what follows is a statement of the cause
of action, further followed
by the rest of the usual notices in a simple summons. Further there
is no citation of parties under
the heading 'particulars of claim'
because these are contained at the beginning of the summons as
information to the sheriff. But
for the heading 'Particulars of
Claim', the contents of the claim could be construed as a concise
statement of the plaintiff's
cause of action.
5.
Form 9
requires the plaintiff to set out his cause of action in
concise terms. This does not mean that there can be no particularity
of
the claim. According to Harms Civil Procedure in the Superior
Courts at B-136(l), "although the cause of action in a simple
summons can be termed a label or a general indication of claim, it
must be described with sufficient clarity to inform the defendant
in
sufficient detail of the case against him to enable him to ward off a
summary judgment application and to satisfy the court
that the
plaintiff has a valid cause of action entitling him to judgment."
Where the cause of action is founded on a document,
such document
should be attached to the simple summons: Volkskas Bank Ltd v
Wilkinson
1992 (2) SA 388
(C) at 395A. The relevant documents were
attached to the summons here.
6.
They only marker that seems to suggest that the simple summons was
more than it proclaimed to be, is the heading 'Particulars
of Claim'
within the body of the summons rather than a separate annexed
document. While this is sloppy and creates confusion, it
is not
sufficient to render the summons a combined summons. On this basis,
the applicant is entitled to deliver a declaration.
7.
It also appears from the record ( in the Defendant's Reply to the
Rule 30(1)) that the respondents simultaneously took the view
that
the applicant was out of time for delivery of the declaration. This
contradicts the defendants' initial objection on the basis
that the
summons was a combined summons. It is not clear from the
pleading
whether this is intended to be an alternative ground of objection.
There were no submissions before court in this regard.
8.
In the circumstances I find that the applicant is entitled to succeed
in this application. In the written heads of argument,
the applicant
sought costs on a punitive scale. However, during argument, counsel
for the applicant did not pursue this argument.
9.
I make the following order:
9.1.
The defendant's plea and counterclaim is set aside.
9.2.
The plaintiff is to deliver its declaration within ten days of this
order.
9.3.
Costs are to be costs in the cause.