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[2013] ZAGPPHC 404
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Van Den Berg v Arwyp Medical Centre and Others (12673/2012) [2013] ZAGPPHC 404 (15 November 2013)
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 12673/2012
DATE:
15 NOVEMBER 2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
MARIA
ELIZABETH VAN DEN
BERG
................................................
Plaintiff
(Applicant)
and
ARWYP
MEDICAL
CENTRE
......................................................
1
st
Defendant
(Respondent)
A
J
DYABALA
...............................................................................
2
nd
Defendant
NETCARE
UNITAS
HOSPITAL
......................................................
3
rd
Defendant
CLAUD
KILIAN
...............................................................................
4
th
Defendant
JUDGMENT
JANSEN
AJ
Background
:
[1]
The applicant issued summons against the defendants, which met with a
notice of intention to defend by the first defendant and
fourth
defendant only and no plea was forthcoming from any of the other
defendants. As a result, a notice of bar was filed by the
plaintiff
on the first defendant on 9 May 2012. This notice of bar elicited an
exception by the first defendant filed on the plaintiff
on 15 May
2012 which, ex
facie
the document, is to the effect that the plaintiff had not made out a
cause of action in its particulars of claim (hereinafter referred
to
as the “first exception”).
[2]
At this stage the attorneys for the parties exchanged correspondence
(purportedly aimed at reaching some sort of . agreement).
During
these exchanges of correspondence, the first defendant’s
attorney was advised that the plaintiff would not amend her
particulars of claim as they were not vague and embarrassing and/or
lacked averments to sustain a cause of action and therefore
that the
first defendant should set the matter down for arguing an exception,
but failed to do so.
[3]
On 14 February 2013 a notice of a new firm of attorneys, aqting for
the first defendant only, was served on the plaintiffs attorney
of
record and filed at court on 15 February 2013.
[4]
A notice in terms of Rule 23(1) to the effect that the particulars of
claim are vague and embarrassing, dated 5 March 2013,
was served on
the plaintiff on ri March 2013 (hereinafter referred to as the
“second exception”) and filed at court
on 12 March 2013.
This was done without the first exception being withdrawn. As a
result, the plaintiff filed a Rule 30 application
calling on the
first defendant to withdraw the exception of 15 May 2012 or to
furnish heads of argument in respect thereof. It
is emphasised that
the Rule 30 application cites only the first defendant wiiereas the
Rule 23(1) notice refers to four defendants
in its heading. Only the
first defendant is cited as respondent in this application, as only
the first defendant filed a Rule 23(1)
notice.
[5]
The said Rule 30 application was launched on 11 April 2013 and was
further preceded by a facsimile dated 13 March 2013, informing
the
respondent of the alleged irregular step and granting the respondent
from 13 March 2013 to 15 March 2013 to file a plea or
serve heads of
argument in its 2012 exception. Rule 30(2)(b) requires a party to
give a respondent ten court days for the removal
of an alleged
irregularity.
[6]
The plaintiff w
r
as
also ahvays free to enrol the first exception, as was set out in
Viljoen
v Federated Trust Ltd
1971
(l) SA 750
(OPD) at pages 754~755A.
[7]
What is puzzling is that the indexed Rule 30 application does not
contain all the relevant documentation. The exception served
on the
plaintiffs attorney of record on 5 April 2013, and filed at court on
8 April 2013, does not form part of the Rule 30 application.
It
refers to four defendants in its heading but is correctly entitled
“First Defendant’s Exception”.
[8]
The application which is indexed and paginated contains the notice of
motion served and filed on 11 April 2013, a founding affidavit,
the
first defendant’s notice in terms of Rule 23(1) dated 5 March
2013 (but served on 12 March 2013), the first defendant’s
first
exception, a notice of bar served on 9 May 2012 and the facsimile
dated 13 March 2013, which preceded the Rule 30 application.
[9]
The Rule 30 notice (the facsimile) which was sent to the first •
defendant gives it two ordinary days instead of ten court
days within
which to remove the alleged irregularity. The last day when the Rule
30 notice, seeking the removal of the alleged
irregularity/irregularities could have been filed by the plaintiff,
was ten court days after the plaintiff became aware of the
irregular
step, namely on 26 March 2013 (ten days after service of the Rule
23(1) notice on her attorneys of record, which took
place on 11 March
2013). No such notice was ever filed. Had such a notice been filed
the Rule 30 application had to be launched
before 12 April 2013. As
stated, it was launched on 11 April 2013. Furthermore, not only ' the
Rule 23(1) notice (the “second
exception”), but the
subsequent exception filed on 8 April 2013, should have been attacked
in the Rule 30 application, once
the exception was served and filed.
[10]
Rule 30(1) and (2) of the High Court Rules reads as follows:—
“
30
Irregular Proceedings
(1)
A party to a cause in which an irregular step has been taken by any
other party may apply to court to set it aside.
(2)
An
application in terms of subrule (1) shall be on notice to all parties
specifying particulars of the irregularity or impropriety
alleged,
and may be made only if—
(a)
the applicant has not himself taken a further step in the cause with
knowledge of the irregularity;
(b)
the applicant has, within ten days of becoming aware of the step, by
written notice afforded his opponent
an
opportunity of
removing
the cause of complaint
within
ten days
;
(c)
the application is delivered within
J.T
days
after the expiry of the
second
period mentioned in
paragraph
(b
)
of
subrule (2)
.”
[11]
Hence, the plaintiff s Rule 30 application itself, is wholly
irregular and does not comply with either Rule 30(2)(b) nor Rule
3o(2)(b)(c) because no Rule 30 notice was served and filed. The
application is, therefore bad in law and should fail.
[12]
Nonetheless, because the Rule 30 application is before the court, the
merits or demerits of the grounds of the alleged irregularity
set out
therein will be considered.
[13]
The mere fact that an exception has already been taken does not
prohibit a party from taking a second exception, as \vas argued
on
behalf of the plaintiff.
[14]
The real question, however, is whether, in principle, the applicant
is correct in stating that the further Rule 23(1) notice
(and
exception, which, as set out above, seems to have eluded the parties)
• constitute an irregular step. Seeking to argue,
as the
respondent’s counsel did, that the first Rule 23 exception was
filed merely to put a pleading in place after the notice
of bar, and
when it was not pursued, the notice of bar was somehow resuscitated,
cannot be correct. A punitive costs order could
have been sought
against the respondent, as the plaintiff could have enrolled the
exception as set out above.
[15]
There is no irregularity in filing a second exception where the first
exception has not yet been heard. No authority for the
proposition
that the filing of a second exception constitutes an irregularity, in
circumstances where a previous exception has
not yet been finalised,
were cited to the court. The reason for this is obvious. It is trite
that one can, for example, serve various
requests for particulars for
trial, in the same way that one can, for example, file more than one
Rule 35(3) notice. There is nothing
untoward in such conduct. This is
so,
a
fortiori,
in that one can except to a pleading and fail yet, when the trial is
heard, take the self-same exception. An order dismissing an
exception
is not binding on the trial court
1
and the same argument may again be raised. The object of an exception
is to dispose of the case or a portion thereof in an expeditious
manner, or to protect a party against an embarrassment which is so
serious as to merit the costs of an exception. Thus an exception
founded upon the contention that a summons discloses no cause of
action, or that a plea lacks averments necessary to sustain a
defence, is designed to obtain a decision on a point of law which
will dispose of the case in whole or in part, and avoid the leading
of unnecessary evidence at the trial. If it does not have that effect
the exception should not be entertained.
[16]
As stated, it was argued by counsel for the first defendant that
because the first exception was not set down for hearing,
the notice
of bar was somehow resuscitated. This contention is incorrect. An
exception is a pleading and amounts to compliance
with a notice of
bar. The plaintiffs remedy lay in setting the exception down for
hearing as it was entitled to do. This is clear
from the matter
Landmark
Mthatha (Pty) Ltd v King Sabata Dalindyebo Municipality and Others:
In Re African Bulk Earthworks (Pty) Ltd v Landmark
Mthatha (Pty) Ltd
and Others
2010
(3) SA 8l (ECM) wherein a notice of bar and the effect of Rule 26
were analysed.
[17]
Rule 26 provides as follows: —
“
26
Failure
to Deliver Pleadings - Barring
Any
party who fails to deliver a replication or subsequent pleading
within the time stated in ride 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 ivithinjive 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 pai'ties, shall be in default of
filing such pleading, and
ipso facto barred: Provided that for the
purposes of this rule the days betiveen 16 December and is January,
both inclusive shall
not be counted in the time allowed for the
delivery of any pleading.”
[18]
In the
Landmark
Mthatha (Pty) Ltd v King Sabata Dalindyebo Municipality and Others
supra
case the following is stated in paragraph [12]: —
“
Secondly,
the rule states: 'If any party fails to deliver any other pleading .
. .' (my emphasis). It does not 7'efer to a declaration
or a plea.
The reason for this is obvious. Form 10 to the first schedule to the
rides (the standard combined summons) calls upon
the defendant to
deliver 'a plea, exception, notice to strike out, with or without a
counter claim'. Although it has become practice
(as has occurred in
the present matter) to call upon the defendant (or third party) to
file a plea without reference to an exception
and notice to strike
out (as in the combined summons), it is clear from the wording of
this rule that it requires the defendant
to take the next procedural
step in the proceedings, be it an exception, plea or notice to strike
out.”
[19]
It was also argued, on behalf of the plaintiff, that the second
exception was out of time. In this regard, the plaintiff has
only
herself to blame. The plaintiff cannot state that she has suffered
prejudice as her attorneys of record should have enrolled
the first
exception, had she wished the exception to be heard.
[20]
Furthermore, the Rule 30 application is wholly defective as set out
above, and the application should fail on this ground alone.
Order
In
the event, the following order is made: —
1.
The Rule 30 application is dismissed, with costs.
MM
JANSEN AJ
ACTING
JUDGE OF THE HIGH COURT
ATTORNEYS
FOR THE PLAINTIFF
MADLELA
GWEBU MASHAMBA INC c/o SAMBO-MLAHLEKI ATTORNEYS
Suite
316 City Towers
221
Lilian Ngoyi Street (Van der Walt Street)
PRETORIA
REF:
J GWEBU/VAN1/0001/JG
ATTORNEYS
FOR THE FIRST DEFENDANT SAVAGE JOOSTE & ADAMS INC
141
Boshoff Street Nieuw Muckleneuk PRETORIA
Tel
No: (012) 452 8200 Fax No: (012) 452 8270
REF:
MR W FORRESTER/ AB/WG676
ATTORNEYS
FOR THE SECOND TO FOURTH DEFEFENDANTS MESSRS MACROBERT
Cnr
Justice Mohammed and Jan Shobo Streets
BROOKLYN
Pretoria
Tel:
(012) 425 3400
REF:1018729
COUNSEL
FOR THE FIRST DEFENDANT ADVOCATE T.A.L.L. POTGIETER
1
Conroy
v Nicol and Another 1951 (1) SA 653 (A); Shifren and Others v SA
Sentrale Ko-Op Graanmaatskappy Bpk 1964 (2) SA 343 (O);
Lancino
Financial Investmenrs (Pty) Ltd v Bennet [2008] 4 All SA 220 (SCA)