About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2024
>>
[2024] ZALMPPHC 31
|
|
A.V.D.W v Van Der Westhuizen Attorneys (5333/2017) [2024] ZALMPPHC 31 (2 April 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 5333/2017
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
DATE:
02/04/2024
SIGNATURE
In
the matter between:
A[...]
V[...] D[...] W[...]
PLAINTIFF
And
VAN
DER WESTHUIZEN ATTORNEYS
DEFENDANT
This
judgment is issued by the .Judge whose name is reflected herein and
is submitted electronically to the parties/their legal
representatives by email. The date of this judgment is deemed to be
02/04/2024.
JUDGMENT
DEANE
AJ
Introduction
and Relevant Background
[1]
This is an opposed application in terms of the Uniform Rule 30,
wherein the Plaintiff
launched his application in terms of Rule 30 to
set aside the Defendant's exception as an irregular step.
[2]
The background to the current application is that the current matter
is part of a
long standing dispute between the parties. It has
its origins in a divorce dispute from what can be deduced from the
documents
filed of record.
[3]
Regarding the matter before me, I have to admit that what seemed
quite complicated
on papers and from the arguments on behalf of both
parties was actually one that was quite simple on further analysis.
[4]
The succinct issue before me is summarised as follows:
[4.1]
The Defendant filed their plea and counterclaim on 18 September 2017.
[4.2]
The Plaintiff was barred from filing a plea to the Defendant's
counterclaim.
[4.3]
The Bar was eventually uplifted and the Plaintiff thereafter filed a
reply and plea to counterclaim
on 17 February 2023.
[4.4]
On 1 March 2023 the Defendant filed an exception to the Plaintiffs
Particulars of Claim.
[1]
[4.5]
On 17 March 2023 the Plaintiff served a notice to remove cause of
complaint against the Defendant's
exception.
[2]
[4.6]
The defendant did not and has not removed said cause of complaint.
[4.7]
On 26 April 2023 the Plaintiff launched this application in terms of
Uniform Rule 30 to set aside
the Defendant's exception as an
irregular step.
[5]
The Applicant seeks the following order:
1.
Condonation for the late filing of its notice to remove cause of
complaint
2.
That the Defendant's exception, served on 1 March 2023, is an
irregular step
3.
That the Defendant's exception be set aside.
4.
Costs on an attorney and own client scale
5.
Further and/or alternative relief
RE:
Condonation
[6]
Firstly, regarding the condonation for the late filing of its notice
to remove cause
of complaint. From the papers before me, what can be
ascertained is that the notice to remove cause of complaint should
have been
filed on 15 March 2023 but was filed on 17 March 2023.
[7]
I have looked at the reasons for the late delay given
[3]
together with the supporting annexures
[4]
including the Confirmatory affidavit
[5]
and am satisfied with the reasons provided for the delay and that at
all times it was intended to file the notice timeously. The
reasons
as articulated together with the fact that the notice was served only
2 days late makes me inclined to grant condonation
for the late
filing of the notice to remove cause of complaint.
RE:
Irregular Step
[8]
It cannot be overstated that Rule 30 of the Uniform Rules of Court,
which confers
upon the aggrieved person the right to set aside the
irregular step, is concerned with the forms and not the substance of
the matter.
The party against whom the relief is sought is first and
foremost afforded an opportunity to remove and cure the cause of
complaint.
[6]
An application in terms of rule 30 will be granted only where the
irregular step causes prejudice to the person seeking to set
it
aside. It follows that there is no prejudice if the further conduct
of the case is not affected by the irregular step.
[7]
[9]
I was asked to only deal with the exception insofar as the court does
not uphold the
irregular step proceeding.
Analysis
[10]
Firstly I am inclined to highlight the particular situation I am
faced with herein.
[11]
Currently the papers before this court is not in order.
[12]
Specifically the particulars of claim is not on file.
[13]
Having said that from the papers before me the relevant portion of
the Defendant's exception
reads as follows:
[8]
"13.
The Defendant further contends that upon every interpretation these
rights to claim or claims can reasonably bear
that it is impossible
for the Plaintiff to aver the necessary allegations to sustain a
cause of action.
14.
In the premises the Defendant therefore contends that the
summons
does not disclose a claim valid in law; and leave to amend would be
of no avail to the Plaintiff
Wherefore
the Defendant prays for an order:
1.
That the exception be upheld with costs.
2.
That the Plaintiffs
summons and action
be dismissed with
costs;
3.
Further and/or alternative relief'.
[14]
Seeing that the particulars of claim is not in front of me I must
note that there is therefore
no exception before me. However, it has
been argued by the Applicant that the Defendant's exception is
directed at the particulars
of claim
[9]
and that the Defendant, in their answering affidavit concedes that
the particulars as it stands is not excipiable.
[10]
[15]
Uniform Rule 23(1) states that:
"Where
any pleading is vague and embarrassing, or lacks the averments which
are necessary to sustain a cause of action or defence,
as the case
may be. The opposing party may, within the period for filing a
subsequent pleading, deliver an exception thereto and
may apply to
the Registrar to set it down for hearing "
[16]
What is clear from the papers is that the Defendant has already filed
a plea and has already made their election and
can therefore not take
an exception against the particulars of claim.
[17]
Having further regard to the pleadings before me, the reply is
clearly a reply against the plea.
[18]
The prejudice in this matter therefore becomes self-evident and
constitutes a gross abuse of the Rules of Court.
[19]
As mentioned above, the absence of the particulars of claim means
that I am unable to regard the pleadings in its totality
and
consequently that there is no exception before me.
[20]
Even if there was a valid exception before me the issue remains that
this court is not supplied
with the particulars of claim to properly
address this issue.
[21]
Accordingly after considering the facts attendant to this application
as well as the legal provisions
that regulate pleadings and irregular
steps, it is clear that there is a case for a rule 30 application to
succeed.
[22]
I accordingly make the following order:
22.1.
Condonation for the late filing of the Applicants notice to remove
cause of complaint is granted.
22.2.
That the Defendant's exception, served on 1 March 2023, is an
irregular step.
22.3.
The Defendant's exception is set aside.
22.4.
Costs on an attorney and own client scale.
T.
DEANE
ACTING
JUDGE OF THE HIGH COURT,
POLOKWANE;
LIMPOPO DIVISION
APPEARANCES
FOR THE PLAINTIFF:
Adv. J Janse van Rensburg
INSTRUCTED BY:
Rorich Wolmarans & Luderitz
Incorporated
FOR THE DEFENDANT:
Adv. A.J. la Grange
INSTRUCTED BY:
Van Der Westhuizen Attorneys
DATE OF HEARING:
08 March 2024
DATE OF JUDGEMENT:
02 April 2024
[1]
Record p. 16.
[2]
Record p. 28.
[3]
Index Rule 30 Application pp. 12-14 paras 34 - 39
[4]
Index Rule 30 Application pp. 33-35.
[5]
Index Rule 30 Application pp. 36-37.
[6]
Afrocentrics
Projects and Services (Pty) Ltd t/a Innovative Distribution v State
Information Technology Agency (SITA) SOC Ltd
and Others
[2023] ZACC2.
[7]
Trans-African
Insurance Co Limited v Maluleka
1956 (2) SA 273
(A) at 276F-H [1956)
2 All SA 382
(A);
Sasol
Industries (Pty) Limited t/a Sasol 1 v Electrical Repair Engineering
(Pty) Limited t/a LH Marthinusen
1992
(I) SA 466
[8]
Index to Exception pp. 13-14.
[9]
Record
p. 45 para 7 of the Answering Affidavit.
[10]
Record p. 45 para 8 of the Answering Affidavit.