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Summary: Meaning of the words ‘irregular step’ in rule 30 (1) considered –
‘Irregular step’ is a procedural step which is taken in disregard of the rules, advances
the process closer to completion and prejudicially affects the innocent party’s rights
in the future conduct of their litigation. – N otice in terms of rule 28(1) does not
constitute an irregular step as contemplated by rule 30(1).
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JUDGMENT
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LE GRANGE , AJ:
Introduction
[1] Before me is an application in term of Uniform Rule 30 to declare a notice of
intention to amend an exception (given in terms of rule 28(1)) to be an irregular
step and to set it aside .
[2] The respondent’s objection herein is clear: ‘[T]he service of a notice in terms of rule
28 cannot constitute an irregular step.’ [Emphasis added.]
[3] Up for adjudication then before this Court is the question whether a notice in
terms of rule 28(1) can be regarded as an irregular step as contemplated in rule
30(1).
The r ules
[4] The above rules provide, in relevant part , as follows:
‘28 Amendments to pleadings and documents
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(1) Any party desiring to amend any pleading or document other than a sworn statement,
filed in connection with any proceedings, shall notify all other parties of his
intention to amend and shall furnish particulars of the amendment .
(2) The notice referred to in subrule (1) shall state that unless written objection to the
proposed amendment is delivered within 10 days of delivery of the notice, the
amendment will be effected.
(3) An objection to a proposed amendment shall clearly and concisely state the grounds upon which the objection is founded.
(4) If an objection which complies with subrule (3) is delivered within the period
referred to in subrule (2), the party wishing to amend may, within 10 days, lodge an
application for leave to amend.
(5) If no objection is delivered as contemplated in subrule (4), every party who received notice of the proposed amendment shall be deemed to have consented to the
amendment and the party who gave notice of the proposed amendment may, within
10 days of the expiration of the period mentioned in subrule (2), effect the amendment as contemplated in subrule (7).
…
(8) Any party affected by an amendment may, within 15 days after the amendment has
been effected or within such other period as the court may determine, make any consequential adjustment to the documents filed by him, and may also take the steps
contemplated in rules 23 and 30 .’ [Emphasis added.]
and
‘30 Irregular proceedings
(1) A party to a cause in which an irregular step has been taken by any other party may apply to court to set it aside. ’
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Objection to notice in terms of rule 28(1) by way of rule 30
[5] It is stated in Erasmus Superior Court Practice at RS 20, 2022, D1 -353, with
respective reference to Shell SA Marketing (Edms) Bpk v JG Wasserman h/a
Wasserman Transport 2009 (5) SA 212 (O) and Hill NO v Brown (unreported,
WC C case no 3069/20 dated 3 July 2020) that:
‘Rule 30 has found application where, for example –
…
(n) a notice of intention to amend a plea [under rule 28(1)] so as to introduce a claim in
reconvention was delivered without the procedure in rule 24(1) having been
followed.
… (p) a notice under rule 23(1)(a) that particulars of claim were vague and embarrassing
and delivered out of time .’
[6] It is indeed correct that the objection to the rule 28(1) notice came before the
Court in Shell by way of a rule 30 application and that the Court in that matter
granted the application . However, it does not seem, especially considering the
contents of par 32 of that judgement , that the question which is up for
adjudication in this Court was presented to or considered by that Court.
[7] Albeit a different rule, a similar process of objection was followed in Hill
where t he plaintiff (under rule 30) sought the setting aside of a notice in terms
of rule 21(1)(a) . The Court ultimately found that the delivery of the rule
23(1)(a) notice was found to be an irregular step and ordered that it be set
aside . Just like the Shell matter, it does not seem that the question, which is up
for adjudication before this Court , was raised in the Hill matter.
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[8] Be that as it may, w hat is relevant in Hill is that the Court considered the nature
and character of a ‘notice’ in terms of rule 23(1)(a) and found at par 6 of the
judgement that :
‘A defendant’s notice in terms of rule 23(1)( a) affording the plaintiff an opportunity to
remove an alleged cause of complaint is simply that, a notice. It claims no relief. It does not
call for adjudication. If the plaintiff removes the alleged cause of complaint, the notice has served its purpose and receives no further attention in the case. If the plaintiff does not remove the alleged cause of complaint but the defendant decides not to follow up his notice
with an exception, the notice likewise receives no further attention. If the plaintiff fails to remove the alleged cause of complaint and the defendant files an exception, it is the exception, not the preceding notice, that the court adjudica tes.’
[9] Similar hereto, a notice of intention to amend in terms of rule 28(1) is but a
notice of an intention to amend and only affords the other party, in terms of
subrule (2) an opportunity to either a bide or to object. It claims no relief , does
not call for adjudication , and does not affect the other party rights in the future
conduct of its case. If the disgruntled party objects to this notice (by means of
subrules (3) and (4)) the party who wish to amendment ‘may’ (after having
considered the grounds of objection) either abandon the intention or proceed
and seek leave from the Court to grant the amendment. It is, therefore, not the
notice but the filing of the amendment itself (in terms of subrule (5)) that affects a party’s rights.
Irregular step and Further step
[10] This brings me to the following re levant question, i.e. what is meant by the
term ‘irregular step’, as provided for but undefined in rule 30(1). I n search for
the answer, it is important differentiate between the terms ‘irregular step’ (in
rule 30(1)) and ‘further step’ (in rule 30(2)(a)) but at the same time consider
their interrelationship.
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[11] In Pettersen v Burnside 1940 NPD 403 at 406, the court held that a ‘further
step’ in the proceedings (as now contemplated in rule 30(2)(a)) is 'some act
which advances the proceedings one stage nearer completion' .
[12] The Court in Jowell v Bramwell -Jones and Others1 held that rule 30(2)(a) must
be interpreted in the context of the purpose which it serves and accordingly
found the dicta in Pettersen to be in sufficient . The Court then formulated a
‘further step’ (as contemplated in rule 30(2)(a)) as ‘one which advances the
proceedings one stage nearer completion and which, objectively viewed, manifest an
intention to pursue the cause despite the irregularity.’
[13] I agree with this formulation and how the Court came to its conclusion. I am
of the s imilar view that the words ‘irregular step’ must be interpreted in the
context of the purpose which it serves , to which I will revert.
[14] In Cyril Smiedt (Pty) Ltd v Lourens 1966 (1) SA 150 (0) at l52E the court
considered what is meant by ‘irregularity ’ in the rule and concluded as follows :
‘Relevante, maar onbeedigde, verklarings kan nie deurgehaal word onder Reel 6 (15) nie en
die byvoeging van 'n onbeedigde stuk tot 'n eedsverklaring is nie 'n onreelmatigeverrigting ingevolge Reel 30 nie. Dit is myns insiens duidelik dat die onreelmatigheid deur die Reel
beoog 'n stap in die prosedure moet wees wat die verwikkeling van 'n geding op een of ander stadium in sy geheel raak .’ [Emphasis added.]
[15] I find th is dicta in Smiedt insufficient for the following reason s: A ‘step’ as
provided for in the Uniform Rules is nothing but a ‘procedural step’ and an
‘irregular step’ is then a procedural step which is in conflict to, or in disregard
of, a rule(s). Considering further the purpose of rule 30, which is for a party to
seek remedial action or failing court intervention when a party disregard the
rules – the latter which in itself has as purpose to ensure that litigation is
1 1998(1) SA 836 WLD at 904 B -H.
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conducted fairly and efficiently – it follows naturally that rule 30 is aimed at
instances where the step taken advance s the litigation in disregard of the rules
and which cause unfairness and/or inefficiency or better stated, has a
prejudicial effect on the innocent party’s rights in the future conduct of their
litigation.
[16] I thus agree with Smiedt that the step must have a n ultimate effect on litigation
but, considering the purpose of rule 30 within the rules, this effect must further
be prejudicial to the innocent party’s rights in the future conduct of their
litigation, failing which rule 30 should not be invoke as it will amount to an
abuse of the rule with the only effect to cause unnecessary applications and
delays.
[17] I find my interpretation in line with the Court in SA Metropolitan
Lewensversekeringsmaatskappy v Louw NO 1981 (4) SA 329(O) at 333G -H
who stated the object of rule 30(1) as follows:
‘I have no doubt that Rule 30(1) was intended as a procedure whereby a hindrance to the
future conducting of the litigation, whether it is created by a non -observance of what the
Rules of Court intended or otherwise, is removed.’
[18] I therefore conclude that an ‘irregular step’ , as contemplated in rule 30(1),
must be a procedural step which is taken in disregard of the rules , advance s
the process closer to completion and prejudicially affects the innocent party’s
rights in the future conduct of their litigation.
Notice in terms of rule 28(1)
[19] A notice in terms of rule 28(1) neither advances the process nor could have
any prejudicially effect on the innocent party’s rights in the future conduct of
their litigation. As stated above, it is the amendment itself which advances the
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process and may have a prejudicial effect on the innocent party’s rights to
which relief under rule 30 could be available in terms of rule 28(8). To resort
to a substantial application in terms of rule 30 when a notice is filed would
simply be premature as the party who intend on amending its pleadings may
well decide against it and abandon the amendment which would leave the
application nugatory.
[20] Regarding prejudice, the plaintiff further failed to tender any reason as to why
the notice of an intended amendment to the exception would cause it prejudice .
I submit that no such prejudice can exist in the instance as we are dealing with
a notice only; and the future conduct of the litigation is not prejudicially
effected as the rule itself provide a mechanism to object if it does.
[21] I accordingly find that the notice of intention to amend , filed in terms of rule
28(1), does not constitute an irregular step as contemplated in subrule 30(1).
[22] For this reason, the application must fail.
Order
[23] In the result the following order is made :-
1. The application is dismissed.
2. The applicant shall pay the costs of the application .
A J LE GRANGE
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ACTING JUDGE
APPEARANCES:
COUNSEL FOR APPLICANT S: S F Fisher- Klein instruct ed by Velile Tinto
& Associates Inc.
COUNSEL FOR RESPONDENT: R Andrew instructed by Combrink Nel &
Ballack Inc t/a NBI Attorneys .