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2024
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[2024] ZAFSHC 209
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Greyling v Kraalpunt Boerdery CC and Another (3818/2023) [2024] ZAFSHC 209 (11 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no.
3818/2023
In
the matter between:
FREDERICK
JOHANNES GREYLING
and
KRAALPUNT
BOERDERY CC
PETRONELLA
SOPHIA VAN DER BERG
Applicant
First
Respondent
Second
Respondent
HEARD
ON:
18 APRIL 2024
DELIVERED
ON:
11 JULY 2024
JUDGMENT
BY:
MANYE, AJ
[1]
This is an application in which the Applicant seeks an order for the
removal
or
lifting
of Bar dated the 9
th
October 2023 in terms of which the
Applicant was
ipso facto
barred from delivering a plea.
[2]
Rule 26 of the Superior Court Rules provides as follows:
[1]
“
If any party
fails to deliver any other pleading within the time laid down in this
rules or within any extended time allowed in
terms thereof, any other
party may by notice served upon him require him to deliver such
pleading within five (5) days after the
day upon which the notice is
delivered. Any party failing to deliver the pleading referred
to the notice within the time
therein-required fall within such
further period as may be agreed between the parties, be in default of
filing the pleading and
ipso facto barred.
”
[3]
It is common cause between the parties that the summons was issued on
24 July 2023
and served personally on the Applicant on the 26
th
July 2023.
[2]
The Applicant duly
filed his notice of intention to defend on the 4
th
September 2023. In terms of rules, the Applicant had twenty (20) days
thereafter to serve and file his Plea, which was due on or
before the
2
nd
October 2023.
[4]
The time period in which the Applicant had to file a plea, 2
nd
October 2023, lapsed without the plea being filed. Notwithstanding,
the Respondents’ attorneys contacted the Applicant’s
attorneys informing them that the plea was overdue. The Applicant was
granted a further extension until the 6
th
October 2023 to deliver a Plea. Further the Applicant was warned that
should a plea not be filed, the Respondents will be left
with no
option but to place the Applicant under Bar.
[3]
[5]
It is common cause that the Applicant failed to heed the Respondents’
attorneys’
warning about failing to deliver a plea, and the
Notice of Bar was effected on the Applicant on 16 October 2023.
[6]
The purpose of this application, in essence, is to request the above
Honourable Court
to remove the Bar; allow the filing of a plea out of
time limits provided and to permit the Applicant to defend the main
action.
[7]
Rule 27 provides that:
(1)
In
the absence of agreement between the parties, the court may upon
application on notice and on good cause shown, make an order
extending or abridging any time prescribed by these rules or by an
order of court or fixed by an order extending or abridging any
time
for doing any act or taking any step in connection with any
proceedings of any nature whatsoever upon such terms as it seems
meet.
[4]
(2)
…
….
(3)
the court may, on good cause shown, condone any non-compliance with
these rules.
[5]
[8]
The Applicant’s explanation for failure to deliver the Plea
timeously can be
summarized as follows:
8.1
The Applicant upon receiving service of the combined summons and
particulars of claim instructed his
attorney of record to defend the
matter.
8.2
A notice of intention to defend was filed on the 4
th
September 2023.
8.3
A consultation with counsel was scheduled and it took place on the
18
th
September 2023 in which the appointed counsel was alerted to the fact
that the plea was due on the 2
nd
October 2023.
[6]
[9]
Mr Callie Steenkamp, the correspondent for the Applicant’s
attorney of record,
upon being served with the Notice of Bar enquired
from Applicant’s attorneys of record (Mrs Koen) about the Plea
being overdue
and having been afforded until the 6
th
October 2023 to deliver a Plea.
[7]
[10]
It is so that the Notice of Bar was served on the Applicant’s
correspondent attorneys on
the 9
th
October 2023, affording
the Applicant a further five (5) days to deliver a plea failing which
the Applicant would be
ipso facto
barred from delivering such
a plea.
[11]
It is so that upon receipt of the Notice of Bar, Mrs Koen the
Applicant’s attorney enquired
from appointed Counsel on the
11
th
October 2023 about the outstanding plea and further informing Counsel
about the notice of bar that has been delivered. The
Applicant’s appointed Counsel for his part replied on the same
day informing Mrs Koen, the Applicant’s attorney, that
a plea
will be attended to.
[8]
[12]
On the 18
th
October 2023 the Applicant’s attorney
Mrs Koen once again enquired from Counsel on the outstanding plea to
which she was
informed by counsel that it would be attended to.
[13]
On 23 October 2023 Mrs Koen requested via e-mail from the
Respondents’ attorneys, Mr Steenkamp,
another week to deliver
the Applicant’s plea. The Respondents’ response was that
the Applicant was already under bar
and further that the request for
extension of time periods was refused.
[9]
[14]
Suffice to state that the Applicant’s plea was finally received
from Counsel on the 31
st
October 2023 and same was sent to
the Respondents’ attorneys on the same day with a request to
condone the late filing of
same. The Applicant’s request for
late filing of the plea was rejected and the Applicant’s
attorney Mrs Koen, with
the difficulties encountered with the
Counsel, decided on obtaining another Counsel’s assistance
after terminating the mandate
of the former Counsel. It is not in
dispute that the plea was filed on 31 October, which is more than
three (3) months after the
issuing and serving of the Summons on the
Applicant.
[15]
The Respondents, in opposition to the Applicant’s application
for lifting of Bar, submit
that the Applicant has failed to
satisfactorily explain his delay covering the entire period of the
delay in order for the Court
to assess his conduct and motives. This,
the Respondents submit amongst a fatal defect to the application.
[16]
The Respondents further submit that the Applicant has been reckless
or intentional with his disregard,
not only for the rules of the
Court but more importantly the processes as set out in the Notice of
Bar (
dies
as stipulated in the Notice of Bar, or the Court Rules in respect of
a Notice of Bar). It is further submitted that the Applicant
proceeded with this application with laxity and disrespect for the
Court’s processes, clearly thinking that condonation and
lifting of Bar is simply there for the asking.
[10]
[17]
The Respondents further submit that the Applicant’s plea, which
took more than three (3)
months, consists only of three pages; does
not disclose the necessary defence and amounts to nothing more than a
bare denial. The
Respondents further submit that despite the plea
being a bare denial, one would have expected substantiation from the
Applicant
in its founding affidavit to convince the Court of its
bona
fide
defence by elaborating on these bare denial allegations.
[18]
Simply put, the Respondents’ submission is that the Applicant
has failed to address any
aspects of the Respondents’ claim in
the main.
It is important to highlight
that the Applicant’s plea was never filed in Court, it was
merely delivered to the Respondents.
[19]
The lack of particularity in the Applicant/Defendant’s plea
renders the defence bald, vague
and sketchy. It is trite that the
Defendant must file a plea which
fully
sets out
[11]
his defences to the main action. It is not enough to simply allege
that he did not contract with the Plaintiffs/Respondents in
a manner
indicated in the summons.
[20]
In
Gilinsky
and another v Superb Launderers & Dry Cleaners (Pty) Ltd
[12]
the Court stated:
“
It follows,
therefore, that, if the allegations in the defendant’s
affidavit equivocal or incomplete or open to conjuncture,
then the
requirements of the rule in question have not been complied with.
”
[21]
Simply put, the allegations which underpin the Respondents’
case against the Applicant
remain largely, if not only, undisputed on
the papers. The Applicant herein elected not to engage with the
substantive allegations
made by the Respondents in their claim nor
did Applicant put any version to the contrary.
[22]
The question before the Court is whether the Applicant’s
default should be condoned, and
the bar placed be lifted. The
factors which are usually weighed by this Court in considering an
application for exercise
of discretion to lift the Bar, also include:
(a)
the degree of non-compliance; the explanation thereof;
(b)
the importance of the case;
(c)
the Respondents’ interest in the finality of the matter;
(d)
the convenience of the Court and;
(e)
the avoidance of unnecessary delay in the administration of
justice.
[13]
[23]
In
casu
, the delay is excessive, as indicated above, that it
took more than three (3) months for the filing of a plea as a result
of all
involved on behalf of the Applicant. The explanation put
forward by the Applicant for the delay in filing the plea and the
delivery thereof to the Respondents is relatively detailed and
reveals regrettable disorganization and slackness on the part of
those to whom the Applicant had entrusted with the matter.
[24]
In my view, this is an instance where the Applicant should not be
prejudiced by any lack of compliance
with the rules displayed by the
attorneys and Counsel representing him. In all probability, what
caused the delay is unknown to
him. I am willing to assume in the
Applicant’s favour that the matter is of substantial importance
to him and accept in his
favour that there has been no or minimal
inconvenience to the Court.
[25]
However, on the merits, which must be weighed against the other
factors, this Court cannot be
said to be charitable to the Applicant
in lifting the Bar. On that score, the scales are evenly balanced for
condoning the default
and lifting the bar, thereby entitling the
Court to grant the indulgence of lifting the bar.
[26]
In
casu
,
the Applicant’s legal representative submitted that the
application is bona fide and not made with the objective of delaying
the Respondents’ claim. Counsel further submitted that the
Applicant has a
bona
fide
and the defence that is not ill-founded albeit being a bare denial.
Counsel submitted further that procedural prejudice caused
to the
Respondents can be compensated by an appropriate costs order.
[14]
[27]
The effect of denial, albeit bare in
casu
,
is to put the fact denied in issue between the parties and, also, all
the necessary implications which flow from it, and to advise
the
plaintiff that he will be required to prove these facts at trial.
[15]
[28]
In light of the above, I am of the view that the Applicant’s
application is neither
frivolous
nor
vexatious
under
the circumstances.
[29]
In the circumstances of the aforesaid the following order is made:
ORDER:
1.
The Bar occasioned by Notice of Bar dated 9 October 2023 is lifted
and/or
removed.
2.
The Applicant is granted leave to deliver his plea.
3.
Applicant to pay the costs of this application on party and party
scale.
T.L.
MANYE, AJ
Appearances:
For
the Applicant:
Adv
JJ BUYS
Bloemfontein
Society of Advocates
Instructed
by:
MARISA
KOEN ATTORNEYS
C/O
SALLEY’S ATTORNEYS
58
GENERAL DAN PIENAAR DRIVE
BLOEMFONTEIN
REF:
C SALLEY/MAR2/0006
For
the Respondents:
Adv
SM VAN VUUREN
Brooklyn
Chambers 57
Instructed
by:
WEAVIND
& WEAVIND INC
BLOCK
E, GLENFIELD OFFICE PARK
361
OBERON STREET, FARIE GLEN
C/O
EG COOPER MAJIEDT INC
R
OOSTHUIZEN
17
THIRD AVENUE STREET
BLOEMFONTEIN
[1]
Erasmus
Superior Court Rules
[2]
Record,
p. 84
[3]
Record,
p. 55
[4]
Uniform
Rule of Court: Rule 27 (1)
[5]
Rule
27(3)
[6]
Record,
p. 47, para 10.3
[7]
Record,
p. 47, para 10.4
[8]
Record,
p. 56, annexure “FA 2”
[9]
Record,
p. 48, para 10.8
[10]
Record,
p. 84, para 6.4
[11]
emphasis
[12]
1978
(3) SA 807
(C) at 810
[13]
2013
ZASCA at p. 5
[14]
Ferris
v First National Bank Ltd
2014 (3) SA 39
(CC) at 43G-44A
[15]
Builders
Ltd v Union Government (Minister of Finance)
1928 AD 46
at 53