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[2013] ZAFSHC 152
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Fuku v Mpoka (A137/2013) [2013] ZAFSHC 152 (19 September 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No : A137/2013
In
the appeal between:
E N FUKU
..................................................................................
Appellant
and
I MPOKA
...............................................................................
Respondent
_____________________________________________________
CORAM:
DAFFUE, J
et
DE WET, AJ
_____________________________________________________
JUDGMENT:
DAFFUE, J
HEARD ON:
9
SEPTEMBER 2013
_____________________________________________________
DELIVERED ON:
19 SEPTEMBER 2013
_____________________________________________________
INTRODUCTION
[1] The material issues
in this appeal are whether an exception was correctly upheld by the
court
a quo
and what is the correct order to be granted in the
event of a court concluding that a plaintiff’s particulars of
claim is
excipiable.
[2]
In casu
appellant (as plaintiff in the court
a quo
) issued summons out
of the Bloemfontein Magistrate’s Court against respondent (as
defendant in the court
a quo
), claiming damages in the sum of
R12 738, 77 in respect of a motor vehicle collision that occurred in
Bloemfontein on 13 September
2011 which according to the appellant
was caused by the sole negligence of the respondent. Both parties are
resident in Bloemfontein.
The facts appear to be simple and the
amount of the claim so small that the dispute should have been
adjudicated and judgment granted
long ago, even if a counterclaim
would have been filed. We have been informed from the bar that trial
dates in the Bloemfontein
Magistrate’s Court are allocated
within four months of the close of pleadings. Unfortunately things
turned out totally different.
To avoid confusion the parties shall be
referred to as appellant and respondent respectively.
[3] This appeal is
directed at the judgment of the court
a quo
dated 22 August
2012 and the reasons advanced on 16 April 2013 in terms whereof it
upheld respondent’s exception with costs
and dismissed
appellant’s claim.
REASONS FOR
JUDGMENT IN TERMS OF RULE 51
[4] The court
a quo
’s
reasons will be dealt with more fully
infra
, but at this stage
it is regarded apposite to quote the last two paragraphs thereof,
which read as follows:
“
It is quite
evident from the eight grounds raised by the applicant that they
contend that the summons and particulars of claim of
the respondents
is not only vague and embarrassing, but that it also lacks the
necessary averments to sustain the plaintiff’s
action. What
this court finds even more damaging, is that the respondents again
failed to remove the cause of complaint yet again
in the specified
period.
No order was made in terms of rule
60(A) and thus the court can effectively skip to the notice of
exception calling for the dismissal
of the plaintiff’s claim.
Looking at the circumstances above, it is prudent for this court to
uphold the said exception with
costs.”
GROUNDS OF APPEAL
[5] As will be shown
infra,
neither the particulars of claim and other documents
filed, nor the procedure adopted in the court
a quo
were in
accordance with the Rules of Court. Matters did not improve when the
appeal was lodged. Appellant should have raised crisp
and to the
point grounds of appeal. See:
Killian v Geregsbode, Uitenhage
1980
(1) SA 808
(AD) at 815C and
Songono v Minister of Law and Order
1996(4) SA 384 (ECD) at 385C – G. Instead the notice of
appeal filed on behalf of appellant consisting of nine paragraphs
including eighteen sub-paragraphs in a six page document is
elaborate, convoluted and not crisp and to the point. The grounds of
appeal can be summarised as follows:
5.1. The court
a
quo
erred in upholding the exception as the
so-called notice of exception did not contain an allegation that the
particulars of claim
were either vague and embarrassing or lacked
averments which were necessary to sustain a cause of action.
5.2. The appellant filed
a notice of intention to amend, which was not opposed and
consequently the particulars of claim were duly
amended before the
court
a
quo
pronounced
on the exception.
5.3. The notice of
exception which contained a prayer in terms whereof appellant’s
claim should be dismissed with costs, was
bad in law and in upholding
the exception, the court
a
quo
dismissed
appellant’s claim which it could not do.
5.4. At best for
respondent and on the basis of a finding that the particulars of
claim were excipiable, the court
a quo
should have afforded
appellant an opportunity to amend his particulars of claim.
FACTUAL MATRIX
[6] The following is the
factual background which culminated in the order of the court
a
quo
appealed against:
6.1. Appellant,
instructing a Hoopstad attorney, issued summons out of the court
a
quo
in Bloemfontein without giving an address within 15
kilometres from the court as he was supposed to do for purposes of
delivery
of pleadings and other documents. Apart from the Hoopstad
attorney’s address, a fax number and email address were
provided.
6.2. Respondent gave
notice of intention to defend whereupon a notice in terms of Rule
60(A) was issued. This notice was drafted
in Pretoria by an attorney
acting on behalf of respondent, which attorney instructed a local
firm as his Bloemfontein correspondents.
It is unclear at which
address this notice was served upon appellant’s attorneys, if
at all, but indications are that it
was faxed on 4 June 2012 to a fax
number, the owner of which has not been identified.
6.3. On 27 June 2012 a
notice of exception was issued on behalf of respondent, but there is
also no indication as to when service
thereof was effected. It is
presumed that the notice was sent per mail to appellant’s
attorney in Hoopstad.
6.4. Respondent relied on
eight grounds for the conclusion that plaintiff’s summons
(presumably the particulars of claim)
constituted an irregular step
for purposes of Rule 60(A). Exactly the same eight grounds were
relied upon in the notice of exception.
I shall deal later herein in
more detail with these grounds.
6.5. Respondent did not
indicate in her notice of exception whether she relied upon the fact
that the summons and/or particulars
of claim were vague and
embarrassing and whether it was her case that no cause of action was
pleaded. Appellant was informed in
the notice of exception that
respondent intended to apply to the court
a quo
on 19 July
2012 “for an order dismissing the plaintiff’s claim with
costs”.
6.6. On 19 July 2012,
being the day on which respondent intended to apply for dismissal of
appellant’s claim, a notice of
intention to amend the
particulars of claim was served upon respondent’s attorneys. A
Bloemfontein firm of attorneys was
cited as appellant’s
attorneys of record, whilst the name of the Hoopstad firm of
attorneys also appeared on the document.
6.7. On 19 July 2012 the
court
a quo
postponed the application to 26 July 2012.
6.8. On 20 July 2012
appellant’s Bloemfontein attorneys of record came officially on
record for the first time. By now four
sets of attorneys were
involved whilst the parties reside in Bloemfontein and the whole
cause of action arose in this district.
6.9. The matter was not
argued on 26 July 2012, but postponed and argued on 2 August 2012
only.
6.10. On 8 August 2012
and whilst there was no objection to appellant’s notice of
intention to amend his particulars of claim
which was delivered on 19
July 2012 and long before the matter was argued, the amendment was
effected.
6.11 .On 22 August 2012
the court
a quo
upheld the exception with costs, effectively
dismissing appellant’s action and on 16 April 2013 it provided
reasons for judgment
in terms of Rule 51. I accept that reasons were
requested timeously and that being the case, it took the court
a
quo
nearly eight months to provide these reasons.
RULE 60(A)
[7] Rule 60(A) is a
fairly new rule based on Rule 30 of the High Court Rules and
consequently the authorities applicable to Rule
30 are
mutatis
mutandis
applicable to Rule 60(A). Rule 60(A) reads as follows:
“
60A
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 or
herself taken a further step in the cause with knowledge of the
irregularity;
(b) the applicant has, within 10 days
of becoming aware of the step, by written notice afforded his or her
opponent an opportunity
of removing the cause of complaint within 10
days; and
(c) the application is delivered
within 15 days after the expiry of the second period mentioned in
subrule (2)(b).
(3) If at the hearing of an
application in terms of subrule (1) the court is of opinion that the
proceeding or step is irregular
or improper, it may set it aside in
whole or in part, either as against all the parties or as against
some of them, and grant leave
to amend or make any such order as it
deems fit.
(4) Until a party has complied with
any order of court made against him or her in terms of this rule, he
or she shall not take any
further step in the cause, save to apply
for an extension of time within which to comply with such order.”
[8] No party is obliged
to apply to have an irregular step taken by an opponent set aside,
although it is accepted that if such
party is prejudiced by an
irregular step, he/she should not simply treat it as a nullity and
proceed as though it has not been
taken, but must apply to court in
terms of Rule 60(A) and allow the court to exercise its discretion to
decide what is to be done
in relation to the irregular step. If no
substantial prejudice is caused by an irregular step, it might be
better to ignore it
since an application to set it aside may well be
dismissed.
See:
De Klerk v De
Klerk
1986 (4) SA 424
(WLD) at 426B – I and Herbstein &
Van Winsen:
The Civil Practice of the High Court of South Africa
,
5
th
ed, p 735
et seq
and pp 736 and 741 in
particular, as well as authorities quoted.
[9]
The following objections were raised with my comments thereto: a) the
appellant failed to state his full names – he was
referred to
by his initials and surname only and I fail to see any prejudice; b)
appellant failed to set out his business or occupation
– how
could respondent ever be prejudiced by this failure?; c) appellant
failed to prove
locus standi
as
he did not provide sufficient particulars of his ownership of the
damaged vehicle – he stated that he was the owner of
the
vehicle which was identified by model, make, colour and registration
number and nothing more was expected; d) his attorneys
did not
provide an address within fifteen kilometres from the court –
this is true, but one telephone call might have solved
the problem;
e) appellant failed to aver in which town the collision occurred and
also failed to set out particulars that the whole
cause of action
arose in Bloemfontein – it was alleged that the collision
occurred at the junction of two well-known streets
in Bloemfontein
although appellant failed to state the name of the city, but in a
further paragraph it was averred that the whole
cause of action had
arisen in Bloemfontein. Technically speaking there was a
non-compliance, but where is the prejudice, especially
insofar as
respondent is a teacher resident in Bloemfontein
ex
facie
the amended particulars of
claim?; f) appellant failed to aver on which grounds he relied for
the allegation that respondent had
been negligent – this is a
valid objection causing the pleading to be vague and embarrassing.
See: Harms,
Amler’s Precedents
of Pleadings
7
th
ed, p 290 and
Honikman
v Alexandria Palace Hotels (Pty) Ltd
1962
(2) SA 404
(CPD) at 406; g) appellant failed to indicate how the
quantum
of
his damages
had been calculated –
this was a valid objection and it might be argued that this caused
the pleading to be vague and embarrassing;
h) appellant failed to
cite respondent’s residential or business address –
appellant averred that respondent had chosen
a
domicilium
address in Bloemfontein, but it appears
from the amended particulars of claim that this is the residential
address of respondent.
Fact is she received the summons and duly gave
notice to defend the action. Again I fail to detect any prejudice.
Without
trying to convey that all objections raised were technical in nature,
it is important to heed the warning by Schreiner JA
more than five
decades ago in
Trans-African Insurance Co Ltd v Maluleka
1956 (2) SA 273
(AD)
at 278F – G where the
learned judge stated that:
“…
technical
objections to less than perfect procedural steps should not be
permitted, in the absence of prejudice, to interfere with
the
expeditious and, if possible, inexpensive decision of cases on their
real merits.”
[10] Although in a
different context, I wish to subscribe to the following
dictum
of
Froneman J in
KwaZulu-Natal Joint Liaison Committee v MEC for
Education, KwaZulu-Natal and Others
2013 (4) SA 262
(CC) at
par 80, relying on comments by Prof Cora Hoexter:
“
Formalism
has many meanings, but Professor Cora Hoexter helpfully describes one
of its meanings as ‘a
judicial
tendency to attach undue importance to the pigeonholing of a legal
problem and to its superficial or outward characteristics;
and a
concomitant judicial tendency to rely on technicality rather than
substantive principle or policy, and on conceptualism instead
of
common sense'.
Hoexter is further quoted
as follows:
'In cases displaying formalistic legal
reasoning the merits often seem strangely divorced from the
outcome of the case, so
that it is difficult and perhaps even
embarrassing to explain the case to a layperson.’”
[11]
The object of pleadings is to define the issues. In
Imprefed
(Pty) Ltd v National Transport Commission
1993
(3) SA 94
(AD) at 107D,
Kumleben JA and Nienaber JA referred
with approval to
Odgers’ Principles of Pleading and Practice
in Civil Actions in the High Court of Justice
, 22
nd
ed
at 113 and stated the fundamental principle of pleadings as follows:
“
The object
of pleading is to ascertain definitely what is the question at issue
between the parties; and this object can only be
obtained when each
party states his case with precision.”
[12] In the event of a
particulars of claim failing to comply with Rule 6 of the Magistrate
Court Rules (Rule 18 of the High Court
Rules) and in addition are
also vague and embarrassing, the defendant may either apply to have
the particulars set aside in terms
of Rule 60(A), (Rule 18(12) read
with Rule 30 of the High Court Rules) or take exception.
See:
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a L H Marthinusen
1992 (4) SA 466
(WLD) at 469J.
What is apparent
in
casu
is that the respondent did not proceed with an application
in terms of Rule 60(A)(2)(c). She apparently abandoned her
entitlement
to any relief in terms of Rule 60(A) as she, instead of
proceeding with Rule 60(A) procedure, filed the notice of exception
referred
to above.
EXCEPTION
[13] Rule 19 of the
Magistrates’ Court Rules deals with exceptions and applications
to strike out. The relevant parts of the
Rule read as follows:
“
(1) Where
any pleading is vague and embarrassing or lacks averments which are
necessary to sustain an action or defence, as the
case may be, the
opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception thereto
and may set it down
for hearing in terms of rule 55(1)
(j)
:
Provided that where a party intends to take an exception that a
pleading is vague and embarrassing such party shall within the
period
allowed as aforesaid by notice afford such party's opponent an
opportunity of removing the cause of complaint within 15
days:
Provided further that the party excepting shall within 10 days from
the date on which a reply to such notice is received
or from the date
on which such reply is due, deliver the exception.
(2) …
(3) Wherever an exception is taken to
any pleading, the grounds upon which the exception is founded shall
be clearly and concisely
stated.
(4) Wherever any exception is taken to
any pleading or an application to strike out is made, no plea,
replication or other pleading
over shall be necessary.”
[14] It is of utmost
importance to differentiate between two scenarios, to wit pleadings
that are alleged to be vague and embarrassing
on the one hand and
pleadings lacking averments necessary to sustain an action or defence
on the other. If a pleading is alleged
to be vague and embarrassing
only, the party intending to take an exception shall, as a first and
compulsory step, within the period
allowed for filing of any
subsequent pleading (
in casu
20 days from delivery of the
notice of intention to defend) by written notice afford the opponent
an opportunity of removing the
cause of complaint within 15 days. An
exception can only be delivered in such a case within 10 days from
the date on which a reply
to the aforesaid notice is received or from
the date on which such reply is due. This is the second step in the
process. Thus,
in cases where the pleading is merely vague and
embarrassing, a two stage procedure is required.
If the pleading lacks
averments which are necessary to sustain an action or defence, an
exception shall be delivered within the
period allowed for filing any
subsequent pleading and the matter may be set down for hearing. No
notice to remedy the defect is
required in this instance.
[15]
In casu
respondent did not indicate at all in the notice of exception whether
she relied on the fact that the particulars of claim were
vague and
embarrassing or whether it lacked averments which were necessary to
sustain an action. Bearing in mind the various allegations
regarding
non-compliance with the Rules of Court and the grounds which were
similar to those relied upon in the notice in terms
of Rule 60(A),
one would have expected respondent to rely on the fact that the
particulars of claim were vague and embarrassing.
As indicated
supra
six of the eight grounds were really technical in nature and
appellant’s failure could not have caused any material
prejudice.
The other two grounds might be deemed to render the
particulars of claim vague and embarrassing. However sufficient facts
were
pleaded to sustain a cause of action.
[16] An exception that a
pleading is vague and embarrassing should not be allowed, unless the
excipient would be prejudiced if the
offending allegations are
allowed to remain. The vagueness and embarrassment must also strike
at the root of the cause of action
or defence as pleaded.
See:
Levitan v
Newhaven Holiday Enterprises CC
1991 (2) SA 297
(CPD) at 298A
– D and
Jones and Buckle, The Civil Practice of the
Magistrates’ Courts in South Africa
loose-leave ed, vol 2,
p 19-6A.
In casu
no notice
was given to remedy any vagueness or embarrassment in terms of the
proviso to Rule 19(1). The notice in terms of Rule
60(A) could not be
relied upon for purposes of exception.
[17]
It is apposite to quote the following
dictum
of Gamble J in
MN
v AJ
2013 (3) SA 26
(WCC), relying
on
Suid-Afrikaanse Onderlinge
Brand- en Algemene Versekerings-maatskappy Bpk v Van den Berg en 'n
Ander
1976 (1) SA 602
(A) at
607E
:
“
[24]
While
pleadings must be drafted carefully, a court should not read them
pedantically nor should it overemphasise precise formalistic
requirements: the substance of the allegations should be properly
considered.”
Gamble J continued as
follows:
“
[25] Where a
pleading lacks the necessary allegations to substantiate the claim or
the defence (as the case may be), the opposing
party can of course
give consideration to noting an exception. In terms of rule 17(5)
(c)
of the magistrates' court rules (prior to the recent amendment of the
rules) a defendant who wishes to raise an exception must
first give
the plaintiff notice and an opportunity to remove the cause of
complaint. Further, the magistrate shall not uphold
an exception to
the particulars of claim unless he or she is satisfied that the
defendant would be prejudiced in the conduct of
his/her defence if
the summons were to be permitted to stand.”
[18] A party who receives
a notice in terms of the proviso to Rule 19(1) of the Magistrates’
Courts Rules (Rule 23(1) of the
High Court Rules) affording an
opportunity to remedy a pleading that is alleged to be vague and
embarrassing and who concedes that
the pleading is defective, may
rectify such defect by amending the pleading.
See:
National Union of South African Students v Meyer; Curtis
v Meyer
1973 (1) SA 363
(TPD)
at 364D –
367D.
If
despite the amendment, the embarrassment remains real, the other
party should proceed with the second stage of exception procedure.
It
often happens that when an exception is taken on the basis that a
pleading is vague and embarrassing, or lacks averments which
are
necessary to sustain an action or defence, the other party conceding
this to be the case, gives notice of intention to amend
and in the
event of no opposition, causes the amendment to be effected prior to
the exception being argued. Generally in such an
instance the
excipient would be entitled to his costs and if there is no agreement
to that effect, costs is the only aspect to
be adjudicated upon if
the defect has been remedied. The court
a
quo
’
s viewpoint that the
appellant’s notice of intention to amend could not be seen as
rectifying the cause of complaint as he
was already out of time to do
so is without substance. The same applies to the version that
appellant had to bring a condonation
application for the alleged late
filing of the notice of intention to amend. It is clear from the
reasons of the court
a quo
that when the exception was argued, it was
submitted on behalf of appellant that leave should be granted to
amend, but notwithstanding
this the court
a
quo
found that “plaintiff cannot
proceed any further without applying for leave to amend in terms of
Rule 55(A)”. This is
without foundation and I shall refer to
the relevant authorities in the next paragraph. I have already in the
introduction quoted
the last paragraph of the court
a
quo
’
s reasons, but repeat the
following sentence:
“
What this
Court finds even more damaging, is that the respondents again failed
to remove the cause of complaint yet again in the
specified period.”
Fact of the matter is
that when the court
a quo
granted its order, the amendment had
already been effected as there was no opposition to the notice of
intention to amend. Contrary
to the initial particulars of claim
which did not comply with the Rules of Court the amended particulars
of claim cannot be faulted.
[19]
It is a long standing practice that in the event of a court upholding
an exception to particulars of claim, to grant leave
to the
respondent to amend his or her pleading within a specified time. As
Corbett CJ stated in
G
roup
Five Building Ltd v Government of the Republic of South Africa
(Minister of Public Works and Land Affairs)
[1993] ZASCA 4
;
1993 (2) SA 593
(AD) at 602J - 603A:
“
An order
dismissing an action puts an end to the proceedings and means that if
the plaintiff wishes to pursue his claim on a different
pleading he
must start
de
novo.
This
may have drastic consequences for the plaintiff, particularly where
it results in the prescription of the claim. In my opinion,
it would
be contrary to the general policy of the law to attach such drastic
consequences to a finding that the plaintiff's pleading
discloses no
cause of action.”
See
also
Elgin Brown & Hamer (Pty) Ltd v Industrial
Machinery Suppliers (Pty) Ltd
[1993] ZASCA 55
;
1993 (3) SA 424
(AD)
at 431B – G.
[20]
If an exception is upheld to the effect that the plaintiff’s
particulars of claim does not sustain a cause of action,
a court
should not dismiss the action as respondent requested the court to do
in casu
and the court
a quo
incorrectly adhered to. The usual order is to set aside the pleading
– the particulars of claim
in
casu
- with leave to amend if so
advised.
See:
Rowe v Rowe
[1997] ZASCA 54
;
1997 (4) SA 160
(SCA) at 167G – I and
Group
Five Building Ltd
supra
at
602D.
[21]
Heher JA, writing for the Full Bench of the SCA in
Constantaras
v BCE Foodservice Equipment (Pty) Ltd
2007 (6) SA 338
(SCA)
,
commented as follows
at p 348E – G
:
“
In argument
counsel submitted that the rule is that a party whose pleading is
struck down on exception is afforded such an opportunity
as a matter
of course.
[31]
That is certainly true of a successful exception to a summons:
Group
Five Building Ltd v Government of the Republic of South Africa
(Minister of Public Works and Land Affairs)
1993
(2) SA 593 (A)
at
602I - 603J. Such a rule is both understandable and necessary. Such
an exception can never put an end to the dispute if a plaintiff
has a
viable alternative basis for its claim; even though the original
claim is struck down without leave to amend, the plaintiff
can always
issue a new summons in which the alternative is pleaded. So refusing
an amendment is merely a waste of costs.”
Herbstein & Van
Winsen
loc cit
at 646
also refer to the relevant authorities and long standing practice of
our courts to allow a party to file an amended pleading
in the event
of an exception being upheld, as an invariable practice of the
courts. As Jones And Buckle puts it at p 19-4:
“Where an
exception is upheld it is the pleading to which exception is taken
which is destroyed. The remainder of the edifice
does not crumble.
The upholding of an exception to a declaration or particulars of
claim does not therefore carry with it the dismissal
of the summons
or of the action.”
[22]
In
Trope and others v SA Reserve
Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(AD) at
269H - I
the court held that the aforesaid
practice applies
a fortiori
when an exception is granted on the ground that a
pleading is vague and embarrassing.
CONCLUDING REMARKS
[23]
The court
a quo
misdirected
itself in at least four respects, to wit:
23.1. In considering and
dealing with the application in terms of Rule 60(A) as it was totally
irrelevant to the adjudication of
the matter. It was not possible to
rely on a hybrid procedure as the court
a quo
apparently found acceptable. The following
remarks are indicative of the wrong approach adopted by the court
a
quo: “
Now it is clear that the applicant by
serving a notice in terms of Rule 60A was gracious enough to let the
respondent know what
was sorely lacking in the summons and
particulars of claim and effectively in doing so, allow them time to
remove the cause of
complaint. The respondent however failed to make
use of the opportunity to remove the cause of complaint which then
led to the
applicant filing the notice of exception to dismiss the
plaintiff’s claim.”
23.2. In neglecting to
accept that appellant has in fact amended its particulars of claim
prior to the pronouncing of its order
and insisting that a
condonation application was required insofar as the “application
for leave to amend” was filed
out of time and that a Rule 55(A)
application could not be entertained at that stage. Firstly,
respondent did not oppose the notice
of intention to amend and
secondly, no formal application in terms of Rule 55(A) was required
as appellant was entitled to effect
the amendment in terms of Rule
55(A) (5) and (7) which he did.
23.3. In upholding the
exception whilst the document relied upon by the respondent, the
so-called notice of exception, was totally
defective insofar as there
was no indication whether reliance was placed on vague and
embarrassing particulars of claim or whether
the particulars of claim
did not sustain a cause of action. At best for respondent the
particulars of claim prior to amendment
were vague and embarrassing,
and that being the case, notice to remedy should have been given in
terms of the proviso to Rule 19(1)
which respondent failed to do and
consequently the exception was prematurely set down.
23.4. Finally, but most
importantly, and even on the basis that a proper notice in terms of
the proviso to Rule 19(1) was given
to which appellant did not
respond timeously, (which is clearly not so), it could not dismiss
the appellant’s action, but
the exception might have been
upheld (whereby the pleading would be set aside) with costs and leave
be granted to appellant to
amend his particulars of claim within a
certain period.
[24] Mr Qwelane who
argued the matter on behalf of respondent, submitted that the
exception should have been upheld, but that the
court
a quo
should
have granted leave to appellant to amend the particulars of claim as
the amendment filed by the appellant constituted an
irregular step.
According to his heads of argument
“
pending
exception kept all other steps to amend pending up until the court
had pronounced itself therein”. (sic)
He argued that the appeal
should succeed in part, but that no costs should be awarded to
appellant at this stage as the costs of
the appeal should be costs in
the magistrates’ court action. There is no merit in this
submission. The appeal should succeed
and respondent be ordered to
pay the costs of the appeal as well as the costs attendant to the
exception procedure in the court
a quo
.
In conclusion I should
mention that respondent applied for condonation pertaining to the
late filing of heads of argument. Attached
to the application was a
letter from the Pretoria attorney indication that respondent agreed
to abandon the judgment of the court
a quo,
but refused to pay
the costs of appeal. This letter is dated 28 August 2013 and the
condonation application was filed on 2 September
2013, a week before
the hearing of the appeal. Costs were already incurred and
appellant’s counsel would by then be entitled
to two thirds of
his day fees. No notice that the said judgment was abandoned was ever
filed in terms of
s 86
of the
Magistrates’ Courts Act, 32 of
1944
, read with
Rule 51
(11)(a). In any event the judgment should
have been abandoned more than a year ago. Notwithstanding the above
indications respondent’s
attorney in his written heads and
during oral argument submitted that the exception was correctly
upheld, although he conceded
that leave should have been granted to
amend.
ORDER
[25] The following orders
do issue:
25.1. The appeal succeeds
with costs.
25.2. The order of the
Magistrates’ Court is set aside and the following order
substituted:
“
The
exception is dismissed with costs, excluding the wasted costs
occasioned by the postponement on 19 July 2012.”
______________
J.P. DAFFUE, J
I concur.
________________
P.J.T. DE WET, AJ
On behalf of appellant:
Adv P.J. Heymans
Instructed by:
E G Cooper Majiedt Inc
BLOEMFONTEIN
On behalf of respondent:
Mr D Qwelane
Instructed by:
Qwelane Theron & Van
Niekerk
BLOEMFONTEIN
/spieterse