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[2012] ZAFSHC 152
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Kramer Weihmann and Joubert Inc v South African Commercial Catering and Allied Workers Union (SACCAWU) (3818/2011) [2012] ZAFSHC 152 (16 August 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No: 3818/2011
In
the matter between:
KRAMER
WEIHMANN AND JOUBERT INC.
..............................
Plaintiff
and
SOUTH
AFRICAN COMMERCIAL CATERING
AND
ALLIED WORKERS UNION (SACCAWU)
..................
Respondent
JUDGEMENT:
MOLEFE, AJ
HEARD ON
:
16 AUGUST 2012
DELIVERED ON:
16 AUGUST 2012
[1] This is an opposed
application for default judgment by the applicant against the
respondent. We are all well conversant with
the background of this
matter from when summons was served on the defendant on the 7 October
2011.
To avoid prolixity, I
will only deal with the essential facts relating to the application
before court today.
[2] Declaration to the
simple summons was served on the defendant/respondent on the 24 April
2012 and the defendant was procedurally,
to have served upon the
plaintiff, a plea or an exception by no later than the 24 May 2012
(20 court days thereafter).
On the 25 May 2012, a
Notice of Bar was served on the defendant requiring the defendant to
deliver its plea within 5 (five) days
after the day upon which the
notice was delivered, failing which the defendant would be
ipso
facto
barred.
[3] On the 30 May 2012,
on the 3
rd
court day after the Notice of Bar was served,
the defendant served upon the plaintiff in a Rule 23(1) Notice.
Notice in terms of Rule
23(1) reads as follows:
“
Where
any pleading is vague and embarrassing or lack 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 paragraph (f) of sub-rule 5 of rule 6:
Provided that where a party intends to take an exception
that a
pleading is vague and embarrassing, he shall within the period
allowed as aforesaid, by notice afford his 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 his exception.”
[4] In terms of the Rule
23(1), the plaintiff in
casu
was afforded an
opportunity to remove the cause of complaint within 15 days from the
30 May 2012, failing which the defendant was
to deliver its
exception.
I am in agreement with
the applicant’s counsel’s submissions that the party
faced with a rule 23(1) Notice could
“
either
amend the pleading in question or stand by the pleading and face the
risk of an exception”
1
In this case, the last
day for the plaintiff to remove the cause of complain or face the
risk of an exception was the 20 June 2012.
However, on the 5 June
2012, the plaintiff proceeded with the application for default
judgement against the defendant/respondent
on the basis that
“
verweerder
buite tyd kennisgewing in terme van reël 23(1) afgelewer het op
30 Mei 2012, en na eiser se kennisgewing van pleitbelet.”
[5] The applicant’s
counsel has argued that the single most determining fact in this
application is that the notice in terms
of rule 23(1) was filed by
the defendant after the time allotted for the filing of the plea had
already lapsed and more importantly,
after the defendant had already
been called upon the file its plea by means of a Notice of Bar.
It was also counsel’s
submission that when an exception is aimed at a declaration, it must
be delivered within the time period
allowed to file a plea and that
once a notice of bar has been delivered, such an exception is out of
time.
[6] I do not agree with
counsel’s argument and submission.
Rule 26 clearly states
that a party who fails to deliver a pleading within the time stated
in the rules may be barred. A party who
receives a notice of bar may
file any relevant pleading, for instance, instead of filing a plea, a
defendant may file an exception.
Once the relevant pleadings has been
filed the bar falls away.
2
The respondent in
casu
duly filed a relevant
pleading before the expiration of the period provided in the notice
of bar.
[7] Also, according to
rule 23(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.
An exception serves as a
means of taking objections to pleadings which are not sufficiently
detailed or otherwise lack lucidity
and are thus embarrassing
affecting
the ability of the other party to plead
.
(my emphasis)
[8] A plaintiff can
accordingly not object to the rule 23(1) notice on the ground that it
was delivered outside the prescribed period
allowed for the delivery
of a plea, but before the expiration of the period provided in the
notice of bar.
Hence the requirement
that the defaulting party ought to be placed under bar by way of
notice to file the relevant pleadings within
the five (5) day period,
before such party is regarded as being in default of filing, the
pleading concerned and
ipso
facto
barred.
When the respondent filed
the rule 23(1) notice on the 30 May 2012, the respondent was still
within the 5 day notice of bar period
as the 5
th
day only lapsed on the 1
June 2012.
[9] It follows logically
in my view that where the respondent in response to a notice of bar
delivers a rule 23(1) notice, he has
taken the next procedural step
in the matter and has thus complied with the court rules.
Furthermore, the rule
23(1) notice need not be signed by counsel or an attorney with a
right of appearance as it is not an exception.
[10] In
FELIX
AND ANOTHER v NORTIER NO & OTHERS(2)
1994
(4) SA 502
SE at 506D – H; the court decided that
“
after
a notice of bar was served, the first defendant was perfectly
entitled to file a notice of exception and not limit himself
to
filing a plea within the time period laid down by rule 26”.
[11] I therefore have
reached the conclusion that the defendant’s/respondent’s
rule 23(1) was filed timeously with the
period of 5 days extended by
the notice of bar and that the defendant had duly complied with the
court rules.
[12] It has been
suggested by the defence counsel that costs
de
bonis propriis
be
awarded against the applicant herein. Counsel has supported his
suggestion with a number of cases in his heads of argument. I
do not
belief that legal practitioners should be personally punished by
costs orders on every occasion that their own view of a
legal
position is not upheld by the court. A cost order
de
bonis propriis
does
not seem to be warranted in these circumstances.
[13] For these reasons, I
order that the application for default judgment be dismissed and the
applicant to pay the costs of the
application.
________________
D. S. MOLEFE, AJ
On behalf of
plaintiff/applicant:
Adv. S. Grobler
Instructed
by:
Kramer
Weihmann & Joubert Inc BLOEMFONTEIN
On behalf of
defendant/respondent:
Adv. N Rali Ralikhuvhana
Instructed
by:
Ramatshila-Mugeri
Attorneys
JOHANNESBURG
/eb
1
Erasmus
J in Erf 1026 Tygerberg CC t/a Aspin Promotions SA v Pick ‘n
Pay Retailers (Pty) Ltd, 2005 (6) 527(c) at 534.
2
Landmark
Mhatha (Pty) Ltd v King Sabata Dalindyebo Municipality; In re
African Bulk Erathworks (Pty) Ltd v Landmark Mthatha (Pty)
Ltd
2010
(3) SA 81
(ECM) at 88H – i.