About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 43
|
|
Bukula v Clientele Legal (4236/2010) [2011] ZAFSHC 43 (3 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 4236/2010
In
the matter of:
SIVUYILE
BUKULA
…..................................................................
Plaintiff
and
CLIENTELE
LEGAL
…............................................................
Defendant
HEARD ON:
24 FEBRUARY 2011
JUDGMENT BY:
SINGH, AJ
DELIVERED ON:
3 MARCH 2011
INTRODUCTION:
[1] This judgment deals
with a number of applications. To avoid confusion the parties are
referred to as plaintiff and defendant.
There is an application under
Rule 30 of the Uniform Rules of the Court to set aside the
plaintiff’s particulars of claim
as an irregular proceeding.
The following applications by the plaintiff are also before me:
1. Application to the
motion court for settlement judgment dated 25 November 2010.
2. Application for
settlement judgment dated 2 December 2010 in terms of Uniform Rule 31
of the court.
The basis of the
plaintiff’s application for settlement judgment is set out in
three paragraphs as follows:
“
1. Based on
my responses to the Defendant for the document they gave me dated 24
January 2011, they have withdrawn the action to
request for removal
of my Summons Amendment document.
2. I believe the case has enough
evidence as it is based on clientele legal policy (Summons Amendment
document) and the email responses
from there personnel to prove all
actions taken were against it.
3. I even issue a Notice in terms of
rule 35 (as Clientele Legal claim to record all telephone calls and
its Manager confirmed it
on the meeting we had) for additional
information to seal the case, but I believe the case has enough
evidence for the above Honourable
Court to be able to take a decision
in my favour.”
The application for
settlement judgment goes on to say as follows:
“
the
plaintiff applies for the settlement judgment as the defendant failed
to apply for trial dates; I have settled all the documents
they had
problems with.”
THE PLAINTIFF’S
ACTION:
[2] On the 23
rd
day of August 2010 the plaintiff, Sivuyile Bukula, instituted an
action out of this Court against the defendant, Clientele Legal.
The
plaintiff’s particulars of claim set out the contents of
telephonic discussions between plaintiff and defendant and,
further
goes on to state:
“
A lawyer to
attend to my case in Cape Town was never appointed.”
The plaintiff then sets
out that he has two policies with the defendant and categorically
states further:
“
From only
R120 a month, you will be entitled R120 000 worth of legal assistance
per year, or up to 1,2 million Rand’s worth
for life.”
The particulars of claim
do not set out who the plaintiff and defendant are, and are not
divided into clearly marked paragraphs.
There is no amount claimed
nor is there any order prayed.
[3] It is not clear
therefrom what the plaintiff’s cause of action or claim against
the defendant is. Rule 17(2)(a) of the
Uniform Rules of this Court
provides as follows:
“
In every
case where the claim is not for a debt or liquidated demand the
summons shall be as near as may be in accordance with Form
10 of the
First Schedule, to which summons shall be annexed a statement of the
material
facts
relied upon by the plaintiff in support of his claim, which statement
shall
inter
alia
comply with rule 18.”
Form 10 makes it clear
that the particulars of claim must set out the relief claimed by the
plaintiff.
Rule 18(4) of the Uniform
Rules of this Court provides that:
“
Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim with
sufficient
particularity to enable the opposite party to reply thereto.”
IMPROPER
PROCEDURES:
[4] The failure of the
plaintiff to set out the material facts on which he relied with
sufficient particularity resulted in the
defendant’s serving a
notice on the 20
th
day of September 2010 in terms of Rule
30(2) of the Uniform Rules of this Court for such non-compliance with
Rules 17 and 18. Simultaneously,
the defendant also served an
exception notice in terms of Rule 23(1) and (3) averring that
plaintiff’s claim did not disclose
a cause of action in terms
of the rules of this court.
[5] Up to this point in
the matter the plaintiff was unrepresented. However, on the 5
th
day of October 2010, Majola Attorneys was instructed to act for the
plaintiff. Plaintiff’s attorneys then requested time
to settle
the matter, but nothing transpired between them.
[6] On the 20
th
day of October 2010 plaintiff’s attorneys served the
defendant’s attorneys with a notice of withdrawal of the
plaintiff’s
action. On the 3
rd
day of November the
plaintiff’s attorneys served a notice of reinstatement of
action on defendant’s attorneys in which
notice they also
withdrew the earlier notice of withdrawal of action. The plaintiff’s
attorneys then withdrew as his attorneys
on the same day. The
plaintiff then proceeded to represent himself, sought to amend his
original action, and in so doing, served
his amendments in the form
of a “Summons amendments” document dated 7 November 2010
to which is attached an amended
particulars of claim. There is still
non-compliance with the rules of this court by the plaintiff in that
the amended particulars
of claim do not contain a prayer, or set out
the material facts relied upon by the plaintiff in support of his
claim apart from
the fact that there has not been a proper amendment
done in terms of Rule 28. The amended particulars of claim read as
follows:
“
1. I joined
Clientele Legal over the telephone on the 14 April 2010; I have two
policies with Clientele legal, policy no.
LE501758049
and
LE501758054
.
All the documents were sent to me.
2. My date of commencement is the
1
April 2010
, as I was told and my contract documents reflect that
if I paid the first installment at the end of April it will.
3. My probation period was from April
to the end of June 2010, as I was told by the sales person and my
policy documents state:
three months
.
4. On
6 July 2010
I received a
Charge sheet for the disciplinary hearing from the department where I
work; I submitted the charge sheet to Clientele
legal on the
6-9
July 2010
.
5. I talked with Ms Boney at Clientele
legal, I informed her about clause no. 6 on page 2 of the charge
sheet which allow me to
use legal representative not the union. I
told her that is what I want; I was told Clientele legal will be
representing me.
6. On the 3 and 5 August 2010 after
the 15-16 July 20101 the days of the hearing, I received a letter
from Mr. Muwe and Mr. van
Shalkwyk (Clientele legal) informing me I
will not be getting a lawyer. Saying my matter is pre existing,
clause 4.1 of our policy
states that:
‘
A
claim is only valid and we will only cover if:- ... the Insurable
event occurs after the waiting period has expired’
7. My claim is valid as it have events
that happened after the end of June, based on
4.1.2
of clause
4.1
states:
‘
The
Claim is received by us in the manner specified in paragraphs 2.1 and
3.1’
2.1 States:
‘
For a
claim to be valid it must have arisen from ... or be connected to an
insurable event...’
8. After I submitted the summons to
clientele legal, they terminated my membership without the labour
Court deciding on this case
as I requested. Letter received from Mr.
Muwe.
9. As the results, on the 29 July 2010
I was dismissed from my employment.
10. Clientele legal claim to record
telephone calls.
ENTITLEMENT
1. I am claiming
35 Million
for
all my damages, I am not a legal expect. I would live it to the Judge
to decide, from my career damages to the actions that
look deliberate
in the side of Clientele legal.
2. After the decision by the high
court, terminate my memberships. As I have lost all my trust to them,
it is important with my
legal representative.”
[7] On the 17
th
day of November 2010 in response the defendant served a notice in
terms of Rule 30(2) stating that the summons amendments sought
by the
plaintiff are irregular for the following reasons:
“
1.
Plaintiff’s attorneys filed a
Notice of Withdrawal of action on 21 October 2010 and tendered costs.
2.
Plaintiff’s attorneys filed a
Notice of Reinstatement of action on 03 November 2010 which does not
comply with Rule 41(1)
in that an action that was withdrawn cannot be
reinstated by way of notice.
3.
Plaintiff filed a ‘summons
amendments’ after the action had been withdrawn and, without
giving Plaintiff notice of intention
to amend the summons.”
The plaintiff was also
notified that should he fail to remove causes of complaint within ten
days, defendant would apply to this
court to have the action set
aside.
Without responding to the
said notice the plaintiff then served the following documents on the
defendant, namely an application
to the motion court dated the 25
th
day of November 2010 for settlement judgment, an application for
settlement judgment dated the 2
nd
day of December 2010 and
an application for trial dates dated 2 December 2010. As the
pleadings have not closed, an application
for trial dates is
premature and irregular.
In response to the
plaintiff’s application for a settlement judgment the
defendant’s attorneys filed an opposing affidavit
on the 21
st
day of February 2011. In this affidavit the defendant raised two
points
in limine
and thereafter dealt with the merits of the
action itself.
[8] The defendant’s
counsel submitted that if either of the points
in limine
are
upheld, the plaintiff is not entitled to judgment and his application
falls to be dismissed with costs.
THE FIRST POINT
IN
LIMINE
:
[9] This is to the effect
that the plaintiff has not complied with Uniform Rule 31 in that the
defendant has not signed a written
confession in respect of
plaintiff’s claim nor is defendant in default of filing a plea
as it is not yet so obliged. The
defendant’s counsel submits
further that for those reasons this court does not have jurisdiction
to entertain the plaintiff’s
application.
THE SECOND POINT
IN
LIMINE
:
[10] This is to the
effect that the plaintiff’s application does not comply with
the provisions of Rule 6 in that,
inter alia
, it is not
supported by an affidavit.
[11] It is not necessary
to decide the points
in limine
as I am dealing with the merits
of the matter.
THE MERITS:
[12] There is no Uniform
Rule of this Court which permits the plaintiff to unilaterally
reinstate his action as he did on 3 November
2010. Given the facts of
ROUPELL v METAL ART (PTY) LTD AND ANOTHER
1972 (4) SA
300
(W) which are different to the plaintiff’s case in that
there is no settlement agreement between the plaintiff and defendant,
there is no
lis
between the parties in the matters before me
in terms of which the plaintiff may enforce rights against the
defendant. There are
no exceptional circumstances in plaintiff’s
case permitting this court to allow reinstatement of the plaintiff’s
action.
[13] Applying the
principles of law to the facts before the court it is clear that
every procedural step taken by the plaintiff
after the withdrawal of
his action, is improper and prejudices the defendant in the conduct
of its defence and, fall to be set
aside by the court. The proper
course for the plaintiff is to issue his action
de novo
in
compliance with the Uniform Rules of this Court. The plaintiff is
clearly not qualified to deal with a matter of this complexity
and
was directed by the court to seek legal assistance.
[14] In the result the
following orders are issued:
1. All procedural steps
taken by plaintiff after withdrawal of his action are improper and
are hereby set aside in whole.
2. Plaintiff’s
application for settlement judgment dated 2 December 2010 is
dismissed and plaintiff to pay costs of defendant.
3. Plaintiff’s
application to motion court dated 25 November 2010 is dismissed and
plaintiff to pay costs of defendant.
4. Defendant’s
application under Uniform Rule 30 dated 21 December 2010 is upheld
and plaintiff to pay costs of defendant.
___________
S. SINGH, AJ
On
behalf of plaintiff: In person
On
behalf of defendant: Adv. M.C. Louw
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
(Ref.
I19062)
/sp