About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2011
>>
[2011] ZAKZDHC 15
|
|
Icebreakers No.83 (Pty) Ltd v Medi Cross Health Care Group (Pty) Ltd (5551/10) [2011] ZAKZDHC 15; 2011 (5) SA 130 (KZD) (18 February 2011)
REPORTABLE
IN THE KWAZULU-NATAL HIGH COURT
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO.5551/10
In the matter between
ICEBREAKERS NO.83 (PTY) LIMITED
….............................................
Plaintiff
and
MEDICROSS HEALTH CARE
GROUP (PTY) LIMITED
….............................................................
Defendant
J U D G M E N T
Del. 18 February 2011
WALLIS J.
[1] The plaintiff issued a simple summons against the
defendant. It claimed payment of three amounts, namely R283 767.00
‘arising
out of arrear rental due in respect of leased
premises’; R169 435.26 ‘being the reasonable and
necessary costs of building
alterations carried out’ to those
premises and R49 587.00 ‘in respect of the costs and repairs to
dental equipment
leased to the defendant’.
[2] The defendant gave notice of its
intention to defend the action and delivered a notice of exception.
It excepted to each of
the three claims on the grounds that the
claims as set out in the summons lacked averments to sustain a cause
of action. The defendant’s
Johannesburg attorney signed the
notice of exception but there was no indication that the attorney
enjoyed rights of appearance
in the High Court. As an exception is a
pleading
1
and therefore requires in terms of
rule 18(1) to be signed by both an advocate and an attorney or by an
attorney enjoying rights
of appearance in the High Court it appeared
that this document was defective.
[3]
Whether to cure this defect or for some other reason, a further
document headed ‘Application in terms of Rule 23(1)’
was
thereafter delivered. In it the defendant said that it was noting an
exception to ‘the plaintiff’s summons and
Particulars of
Claim’. That, of course, it could not do as the action had been
commenced by way of a simple summons issued
in terms of Rule 17(2)(b)
in accordance with Form 9 of the First Schedule and no particulars of
claim were annexed thereto or were
required. The basis of the
exceptions was the same as before save for the addition of the
following:
‘
KINDLY TAKE NOTICE FURTHER THAT
a Notice of Exception in Terms of Rule 23(1) was delivered on 26 June
2010 wherein the Plaintiff was given the opportunity of removing
the
cause of complaint aforementioned and the Plaintiff has failed to do
so.’
It appears that this was an attempt to broaden the scope
of the exception to advance a contention that the summons was vague
and
embarrassing, as well as lacking averments necessary to sustain
an action. However, the previous document was clearly not a notice
affording the plaintiff an opportunity to remove the cause of any
complaint that its summons was vague and embarrassing. In the
event
the exceptions were argued on the original basis. An attorney with a
right of appearance in the High Court signed this second
notice.
[4] Mr Pistorius, who appeared for
the plaintiff, contended that it is impermissible to take an
exception to a claim set out in
a simple summons and that the
exception should be dismissed on this ground alone. Mr Sieberhagen,
on behalf of the excipient, contended
that a summons is a pleading
and in terms of Rule 23(1) it is therefore susceptible to an
exception being taken. He accepted that
there is no authority
precisely in point that supports this contention but relied upon
dicta
in two cases that suggested that
where the defendant’s complaint goes to the substance of the
claims made against it and not
to an irregularity of form in the
summons the proper remedy is an exception. At the outset therefore
the question to be decided
is whether a simple summons is a pleading
to which an exception can be taken.
[5] When the question is couched in
that form one is immediately struck by the fact that, if the
defendant’s contention is
correct, an exception can
successfully be taken to a simple summons even though the summons
complies in all respects with the rules
of court. This is so because
a simple summons in terms of the rules must be in a form as near as
may be in accordance with Form
9 in the First Schedule to the Rules.
The form only requires in regard to setting out the cause of action
that it be set out in
concise terms. There is a plethora of
authority, of which I need mention only the judgment of Schreiner JA
in
Trans-African
Insurance Co. Limited v Maluleka.
2
,
that all that is required in setting
out the concise terms of one’s cause of action is to give a
general indication of the
claim amounting merely to a label. In the
result the claim may be utterly vague, such as the one Schreiner JA
instanced, of a claim
for ₤100 000 ‘as damages for breach
of contract’. In
Maluleka’s
case itself the decision was based on
an assumption that the summons was defective and did not disclose a
cause of action. Nonetheless
the appellant’s claim to have the
summons cancelled was rejected, leave was granted to amend and it was
held that the summons
was adequate to interrupt prescription.
[6] As that is all that is required of a plaintiff
issuing a simple summons to recover a debt or liquidated demand, it
would be
incongruous were a defendant able to take exception to the
summons. In terms of Rule 23(1) the only grounds for an exception are
that the pleading is vague and embarrassing or that it lacks
averments necessary to sustain an action. Yet in accordance with our
authorities a simple summons may be perfectly valid even though the
cause of action is stated vaguely or is defective. The contention
that an exception can be taken to a simple summons is therefore
inconsistent with the nature of such a summons and the requirements
of the rules in regard to its contents.
[7] That analysis suggests that a summons is not a
pleading. This is reinforced by having regard to the provisions of
Rule 18 relating
to pleading generally. In terms of Rule 18(3) every
pleading has to be divided into paragraphs, which are to be
consecutively numbered
and as near as possible each containing a
distinct averment. That does not harmonise with the contents of a
simple summons set
out in form 9. Those contents are consistent with
the definition of a summons as merely:
‘
A citation issued by a competent court
commanding the person to whom it is directed
…
to appear before such court within a
certain period or on a certain day to answer the claim of some other
person …’
3
[8] Rule 18(3) is inconsistent with
the requirements for a simple summons. Its provisions are, however,
characteristic of a pleading
as explained by Galgut J
4
as a document containing distinct
averments or denials of averments. That learned judge regarded Rule
18(3) as being the nearest
to a definition of ‘pleading’
that can be found in the Uniform Rules.
[9] Rule 18(4) is, if anything, even
more destructive of the defendant’s contentions. It provides
that every pleading shall
contain a clear and concise statement of
the material facts upon which the pleader relies for the claim, with
sufficient particularity,
to enable the opposite party to reply
thereto. Firstly that is wholly inconsistent with the proposition
that the cause of action
in a simple summons is merely a label.
Secondly a party receiving a simple summons does not reply to the
summons, but awaits service
of a declaration to which the defendant
responds by way of plea. It follows plainly that a simple summons
does not have to comply
with Rule 18(4). The logical inference to be
drawn from the fact that it does not need to comply with the
fundamental rules governing
pleadings is that this is so because it
is not a pleading. That is consistent with the views of the authors
of
Herbstein and Van
Winsen
who say that
a simple summons is not a pleading.
5
[10] The summons serves the function
of commencing the litigation and bringing the defendant before the
court. The pleading, whether
by way of particulars of claim or
declaration, contains the statement of the case. An exception is
directed at the pleading not
the summons. That was the case under the
rules applicable before the introduction of the Uniform Rules of
Court and the Uniform
Rules do not operate to transform a summons
into a pleading.
6
It is true that rule 18(1), in
dealing with the documents that require to be signed by both an
advocate and an attorney or by an
attorney having the right of
appearance in the High Court, commences with the words:
“
A combined summons, and every other
pleading except a summons …’
but I do not think this alters the conclusion. The rule
was clearly drafted in this way solely to make it clear that a simple
summons
did not need to be signed by anyone other than an attorney.
It was not intended to convey that a summons is a pleading.
[11] Mr Sieberhagen relied
principally upon the judgment of Sutton JP in
Singh
v Vorkel
.
7
That was an appeal against an order
holding that a summons was irregular because it did not set out a
cause of action. Under the
relevant Cape rule (which applied to
illiquid claims) the summons had to state ‘in concise terms
generally’ the plaintiff’s
cause of action. Sutton JP
held that it was not necessary for the summons to set out a complete
cause of action but only to
indicate the claim in the most general
terms. The appeal was upheld on the basis that the summons did
disclose a cause of action.
However the learned Judge President added
the following remarks
8
:
‘
As much as I have come to the conclusion
that the summons does disclose a cause of action, it is not necessary
to consider whether,
if it does not disclose a cause of action, that
is an irregular or an improper proceeding …
In a number of the Transvaal cases to which I have referred and in
Natal … it was decided that if a summons did not disclose
a
cause of action, that was an irregularity and summonses, which in the
opinion of the Court did not disclose a cause of action,
were set
aside.
In the Transvaal cases the point does not appear to have been
specifically raised as it has been in the present case, nor was
argument directed to it, and the Courts appear to have assumed that
it was an irregularity. It is not necessary to come to a decision
on
this question. That is a matter which may well be left over for
future decision. I incline, however, to the view that if the
summons
does not disclose a cause of action that is not an irregular or
improper proceeding within the purview of Rule 33. It seems
to me
that the Rule applies only to irregularities of form and not to
matters of substance.’
The learned Judge President then referred to an
unreported decision in 1906 where a summons claimed ‘damages
for libel’
without stating the amount of the damages and before
pleading to the declaration an exception was taken to the summons.
The exception
was allowed and the plaintiff was permitted to amend
the summons by inserting an amount by way of damages. He then
remarked apropos
of this decision that:
‘
It may be that the proper remedy is by way
of exception as in the case referred to, and not by application under
Rule 33.’
[12] The possibility of taking an
exception to a simple summons has not been pursued in any subsequent
case.
9
It is not apparent what arguments
were addressed to the court, nor whether it gave consideration to the
point that a simple summons
is not a pleading and therefore not
susceptible of being attacked by way of exception.
10
In the circumstances the
dictum
relied on by counsel does not in my
view outweigh the considerations I have dealt with that indicate that
a simple summons is not
a pleading and accordingly cannot be attacked
by way of an exception. It is unnecessary for me to consider whether
it can be attacked
as an irregular proceeding under Rule 30 as that
is not the course that the defendant has adopted.
[13] For those reasons the exceptions must be dismissed.
It is perhaps appropriate to mention in passing that in my view the
concise
statement of the plaintiff’s claims in the summons
complies with the requirements of Form 9 and Mr Sieberhagen did not
suggest
otherwise.
[14] Accordingly the exceptions are dismissed with
costs.
M J D WALLIS
DATE OF HEARING 15 FEBRUARY 2011
DATE OF JUDGMENT 18 FEBRUARY 2011
PLAINTIFF’S COUNSEL MR L.D. PISTORIUS
PLAINTIFF’S ATTORNEYS COLYN TOWNSEND
DEFENDANT’S COUNSEL MR P. SIEBERHAGEN
DEFENDANT’S ATTORNEYS KLINKENBERG INC.
c/o Johan Jooste & Company
1
Haarhoff
v Wakefield
1955 (2) SA 425
(E).
2
1956
(2) SA 273
(A).
The judgment remains good
law even though it was delivered prior to the introduction of the
Uniform Rules of Court.
Standard Bank
of SA Limited v Oneanate Investments (Pty) Limited (in liquidation
[1997] ZASCA 94
;
1998 (1) SA 811
(SCA) at 825 D-E.
3
Claassen’s
Dictionary of Legal Words and Phrases Vol.4
sv
‘
summons’.
4
In
Ex parte Vally: In re Bhoolay v
Netherlands Insurance Co of SA Limited and Another
1972
(1) SA 184
(W) at 185 (F).
5
A.C
Cilliers, C Loots and H. C Nel
, Herbstein and Van Winsen: The
Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa (
5
th
Ed) Vol. 1 p.558.
6
Group
5 Building Limited v Government of the Republic of South Africa
(Minister of Public Works
and Land
Affairs)
1991 (3) SA 787
(T) at 791
B-I. The decision in the subsequent appeal did not affect this
reasoning.
7
1947
(3) SA 400
(C).
8
At
p.406.
9
In
Dowson & Dobson Industrial Limited
v Van der Werf and Others
1981 (4) SA
417
(C) at 423 A Marais AJ refrained from entering into the issue.
10
The
authors of the leading textbook on the Cape Rules at the time,
Arehold and Fisher,
Rules of Court
(2
nd
ed by M
Barnett, 1949) 46, simply say that: ‘There is no provision in
the rules for excepting to a Summons’ As they
had been part of
the committee that drafted the rules under the chairmanship of
Centlivres J it seems likely that this is a correct
reflection of
the position in the Cape at that time. The judgment in
Singh v
Vorkel
is referred to in the book but on other points.