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2024
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[2024] ZAFSHC 282
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Oramok (Pty) Ltd v Mangaung Metropolitan Municipality (4968/2023) [2024] ZAFSHC 282 (12 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no:
4968/2023
In
the matter between
ORAMOK
(PTY) LTD
PLAINTIFF
and
MANGAUNG
METROPOLITAN MUNICIPALITY
DEFENDANT
Neutral
citation: Oramok v Mangaung Metropolitan Municipality
Coram:
Nemavhidi AJ
Heard:
20 June 2024
Delivered:
This judgment was handed down and released to
SAFLII. The date for hand-down is deemed to be 12 September 2024.
Summary:
Rule 30A application to set aside Notice of
Exception in terms of Rule 23(1)-whether Rule 23(1) is an appropriate
response to a
Notice of Bar
ORDER
The
Applicant’s application to set aside the notice to except in
terms of Rule 23(1) of the Uniform Rules of the Court is
dismissed.
JUDGMENT
Nemavhidi
AJ
Introduction
[1]
The application before the court is one of
Rule 30A by the plaintiff in the main action. The plaintiff seeks to
set aside the notice
to except in terms of rule 23(1) of the Uniform
Rules of Court served by the defendant with regards to the
plaintiff`s declaration.
The question before the Court with regards
to the rule 30A application is whether the notice to except in terms
of rule 23(1) is
an appropriate response to the notice of bar.
[2]
The applicant alleges that the respondent
is precluded from serving the notice in terms of rule 23(1) after the
applicant served
and filed the notice of bar. The applicant
considered that the notice to except is an irregular step and
proceeded to serve and
file a notice in terms of rule 30A on the
respondent. The applicant gave the respondent ten days to remove the
cause of the complaint.
However, the respondent did not respond to
the notice. This left the applicant with no alternative but to seek
relief from the
court in this interlocutory application.
[3]
A notice of bar is an instrument used by a
litigant to warn the opponent to plead and to give an extension of
time to the opponent
to allow the opponent to respond to a pleading.
Should the opponent fail to heed the notice of bar the litigant would
be
ipso facto
barred.
[4]
On the last of the
dies
afforded by the applicant, the respondent served a notice titled
‘Respondents Notice of Exception in terms of Rule 23(1)
of the
Uniform Rules of Court’.
[5]
A litigant may use the procedure to except
to a pleading in the following circumstances:
(i)
The pleading lacks averments which are
necessary to sustain an action or defence as the case may be and or;
(ii)
The pleading is vague and embarrassing.
[6]
The respondent states that the applicant’s
declaration is contrary to rule 18(6), which requires that every
pleading which
relies on the true copy thereof, or of the part relied
on in the pleading, should be annexed to the pleading. The applicant
relies
on a written and partly oral contract. However, he did not
attach a copy of that contract. Furthermore, the respondent avers
that
plaintiff did not plead the material facts which gave rise to a
cause of action as his particulars of claim do not sustain a complete
cause of action.
[7]
In
Felix
and Another v Nortier NO and Others
,
[1]
Leach
J held that a defendant is entitled to file a notice of exception
after a notice of bar had been served and need not limit
themselves
to filing their plea within the period prescribed by Rule 26. This
position was supported by the court in
Steve’s
Wrought Iron Works and Others v Nelson Mandela Metro
[2]
(
Steve’s
Wrought Iron Works
)
where the court held that precluding a party from raising an
exception upon receipt of a notice of bar lest such party had
initially
filed the notice within the prescribed period allowed for
the filing of their plea, would defeat the purpose served by the
process
of excepting to a plea.
[8]
In
Landmark
Mthatha (Pty) Ltd v King Sabata Dlalindyebo Municipality and Others:
In re: Africa Earthworks (Pty) Ltd and Others
,
[3]
the
court in the Eastern Cape followed the approach in the Felix case.
However, in
Barnes
and Another v Kushite Investment Holdings (Pty) Ltd
,
[4]
the
Gauteng high court held that the weight of authority is to effect
that a notice of intention to except in terms of rule 23(1)
constituted a pleading for the purposes of rule 26, or at least ‘the
next procedural step in the proceedings’ and therefore
constituted a valid response to a notice of bar. In arriving to this
conclusion, the Court quoted with approval the Eastern Cape
High
Court judgment in
Steve’s
Wrought Iron Works.
[9]
A
similar approach was also adopted by the Pretoria High Court in the
case of
Tuffsan
Investment 1080 (Pty) Ltd v Sethole
.
[5]
In
this case the court held that the defendants were entitled to serve
the notice of intention to except within the period set out
in the
notice of bar. Similarly, the Free State High Court, in the case of
Kramer
Weihmann and Joubert Incorporated v SA Commercial Catering and Allied
Workers Union
,
[6]
held
that a party faced with a notice of bar may file any relevant
pleading in response to a notice of bar. The court held that
the
filing of a rule 23(1) notice of intention within the time stipulated
in the notice of bar constituted a relevant pleading.
[10]
The cases cited above are to the effect
that a party faced with a notice of bar may file any relevant
pleadings in response to a
notice of bar. The filing of a rule 23(1)
notice of intention to except within the timeframe stipulated in the
notice of bar constitute
a relevant pleading.
[11]
In the result, the following order is made:
The Applicant’s
application to set aside the notice to except in terms of rule 23(1)
of the Uniform Rules of the Court is
dismissed.
MB NEMAVHIDI AJ
Appearances
For
the Applicant:
Adv
R Van der Merwe
Instructed
by:
Blair
Attorneys
Bloemfontein
For
the Respondent:
Adv
NB Matlala
Instructed
by:
Ngwane
Attorneys’ Inc
Bloemfontein
[1]
Felix
and Another v Nortier NO and Others
1994
(4) 502 (SE)
.
[2]
Steve’s
Wrought Iron Works and Others v Nelson Mandela Metro
[2019]
ZAECPEHC 78;
2020 (3) SA 535
(ECP)
.
[3]
Landmark
Mthatha (Pty) Ltd v King Sabata Dlalindyebo Municipality and Others:
In re: Africa Earthworks (Pty) Ltd and Others
2010 (3) SA 81 (ECM).
[4]
Barnes
and Another v Kushite Investment Holdings
(Pty)
Ltd [2022] ZAGPPHC 491.
[5]
Tuffsan
Investment 1080 (Pty) Ltd v Sethole and Another
[2016] ZAGPPHC 653.
[6]
Kramer
Weihmann and Joubert Incorporated v SA Commercial Catering and
Allied Workers Unio
n
[2012] ZAFSHC 152.