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[2024] ZAECQBHC 71
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Simon Says Advertising (Pty) Ltd v KG Family Holdings (Pty) Ltd (2085/2019) [2024] ZAECQBHC 71 (29 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION
– GQEBERHA)
Case No: 2085/2019
Reportable
In the matter between:-
SIMON
SAYS ADVERTISING (PTY) LTD
Applicant/Plaintiff
and
KG
FAMILY HOLDINGS (PTY)
LTD
Respondent/Defendant
Date
heard:
28 November 2024
Date Delivered:
29 November 2024
JUDGMENT
Beyleveld AJ:
[1]
The phrase “
Stalingrad tactic
” has in recent years
become widely used in the litigious matters.
[2]
The Applicant
[1]
seeks an order
that the Respondent’s
[2]
Plea be struck out on the grounds that the Defendant has failed to
provide trial particulars requested by the Plaintiff and in
respect
of which an order was granted by Noncembu J on the 7
th
November
2023 that the Defendant respond to the Plaintiff’s request for
trial particulars within 10 days of the service
of the order
[3]
.
[3]
This application is accordingly to seek such further relief, namely
the striking out
of the Plea.
[4]
[4]
Trial particulars perform a useful function in the adversarial
litigation process:
“
The Request for
Further and Better Particulars (or Request for Further & BP as it
is invariably called), is one of the most
misunderstood, abused,
over-exploited and generally mishandled of all pleadings. It is
also capable of being possibly the
most satisfying, ruthless, vicious
and successful means of exploiting the weaknesses in your opponent’s
case, that you have
at your command. As in so many other
instances of pleading, the converse is also true. A badly
drafted Request can
lead to all sorts of faintly (!) concealed rudery
in reply, and can leave your case if not in tatters, certainly
smelling of something
less socially acceptable than attar of
Roses
!”
[5]
[5]
The cause of action formulated in the Particulars of Claim broadly
speaking is based
on an initial agreement between the Plaintiff and
Defendant in terms of which the Defendant would, from time to time,
request Plaintiff
to supply goods and render services.
[6]
It is then thereafter pleaded that an additional contract came into
existence between
the parties
[6]
.
[7]
Relying on various breaches by the Defendant
[7]
it is pleaded that Defendant has failed to pay an amount of R196
487.00 which, it is alleged, is due and payable.
[8]
[8]
Further alternative claims are formulated for damages and
cancellation and damages.
These alternatives are formulated on the
basis that in the event of the Defendant failing to pay the aforesaid
amount, these alternative
claims arise.
[9]
[9]
The Plea on the other hand
[10]
contains an averment that the Plaintiff itself has not complied with
its obligations under the agreements and there is also a claim
of an
overpayment with a Counterclaim for repayment. Needless to say there
is the general denial that any amount is due and payable
by the
Defendant to the Plaintiff.
[10]
After the filing of the Plea summary judgment was averted by the
Defendant filing a bond of security.
[11]
A Notice in Terms of Rule 23(1) was served and filed by the Plaintiff
which resulted in the Defendant
delivering a notice of intention to
amend its Plea and Counterclaim.
[12]
The amendment was not perfected and the Exception was set down for
hearing in November 2020.
[13]
At the hearing of the Exception the Defendant withdrew the
Counterclaim and in addition Beshe
J made an order by agreement which
reads as follows:
“
1.
That the Defendant’s Counterclaim is withdrawn with the
Defendant to pay the
costs.
2.
That leave is hereby granted to the Defendant/Respondent to amend its
Plea, if
so advised, within ten(10) days of the date of this order.
3.
That the Exception is removed from the roll with the
Defendant/Respondent to pay the
costs of the Exception
.”
[14]
As the Exception was removed from the roll it is not apparent from
the order why it was necessary
to make an order that leave to amend
be granted within a specified time; the Defendant had the right at
any time to effect an amendment
provided the provisions of Rule 28
had been complied with.
[15]
After various procedural interludes
[11]
the Plaintiff served and filed a Request for Trial Particulars
pursuant to Rule 21.
[16]
As there was once again inaction on the part of the Defendant, the
Plaintiff initiated an application
to compel compliance with the
request.
[17]
As alluded to above, Noncembu J granted the order as set out above.
[18]
There has not been compliance with last-mentioned order; hence the
present application to strike
out the Plea.
[19]
The Defendant raises a multitude of spurious defences to the
application
[12]
.
[20]
There exists no acceptable reason nor has any been advanced why the
Defendant has failed to furnish
the trial particulars or formulated
more correctly, why the Defendant has not responded to the request by
furnishing an answer
or contending that certain answers are not
necessary or required for the purpose of preparing for trial.
[21]
Although the Defendant contends that there has not been any reckless
disregard of the rules,
plainly this suggestion is far-fetched and
can be rejected out of hand. The Defendant’s conduct in
the matter and its
disregard of an existing court order is wilful and
contumacious.
[22]
It is trite law that in motion proceedings affidavits constitute both
the pleadings and the evidence.
[13]
[23]
Applying such principles, there exists no primary facts or underlying
legal principle why the
Defendant’s failure
[14]
to furnish trial particulars should be overlooked, particularly where
there is an existing court order.
[24]
It is indisputable that a court order stands until set aside.
[25]
In
Municipal
Manager, OR Tambo Municipality and Another v Ndabeni
[15]
the Constitutional Court reaffirmed the principle as enunciated
below:
“
[24]
This Court in
State
Capture
reaffirmed
that irrespective of their validity, under s165(5) of the
Constitution, court orders are binding until set aside. Similarly,
Tasima held that wrongly issued judicial orders are not nullities.
They are not void or nothingness, but exist in fact with
possible
legal consequences. If the Judges had the authority to make the
decision at the time that they made them, then those orders
would be
enforceable
.”
[16]
[26]
As indicated above, no explanation, or at the very least satisfactory
explain is proffered by
the Defendant why it has failed to comply
with the order to compel. Certainly there is no suggestion that the
particulars sought
cannot be furnished or that the particulars sought
are not necessary for the purpose of preparing for trial.
[17]
[27]
In the Plaintiff’s heads of argument, the question is posed
whether the Defendant’s
Plea can only be struck out where
specific provision is made for such a step in terms of the rules.
[28]
Based on certain authorities it is submitted on behalf of the
Plaintiff that the Court has an
inherent power to do so.
[18]
[29]
The Plaintiff must in its application to compel trial particulars,
set out sufficient information
to enable a Court to consider whether
or not to exercise its discretion in its favour. Each case must
be judged on its own
facts.
[30]
It is not, in seeking such an order, simply to state that particulars
have not been furnished,
but facts must be set out why the trial
particulars are required.
[31]
In
Szedlacsek
v Szedlacsek; Van der Walt v Van der Walt; Warner v Warner
[19]
the principles relating to trial particulars to prepare for trial
were restated and in particular it was held that a Court retains
a
discretion to grant or refuse an order for delivery of trial
particulars in terms of Rule 21(4).
[32]
It is further pointed out that an applicant is not entitled to an
order as of a right but must
set out sufficient information to enable
a Court to decide whether or not to exercise its discretion.
[33]
In the present instance more than sufficient facts were set out in
the founding affidavit to
Plaintiff’s Application to Compel
such particulars.
[20]
[34]
Rule 21(4) reads as follows:
“
(4)
If the party requested to furnish any particulars as aforesaid fails
to deliver them timeously
or sufficiently, the party requesting the
same may apply to Court for an order for their delivery or for the
dismissal of the action
or the striking out of the defence, whereupon
the Court may make such order as it seems meet
.”
[35]
Rule 21(4) provides a specific remedy for non-compliance with that
rule. Rule 30A
deals with non-compliance with rules and
court orders.
[36]
It has been held that a party need only follow the provisions of the
rule which provides
a specific remedy.
[21]
[37]
On the other hand it has been held that it is sound practice that the
provisions
of Rule 30A must firstly be complied with.
[22]
[38]
In
Gropaul
v Subbamah
[23]
the following was stated:
“
In my view, a
court should also have regard to the reasons for the Defendant’s
inactivity in the matter, when an application
for dismissal is
brought. There are, during the course of an action, many procedural
devices open to a Defendant to force a dilatory
Plaintiff to bring
his action to finality. Thus, if he fails to deliver a declaration in
a simple summons timeously, he may be
barred. If he fails to
set the matter down for trial, the Defendant may do so. Should the
Plaintiff fail to respond timeously
to a request for particulars for
trial, or to make discovery, the Defendant may apply for an order to
compel, with the sanction
of the Plaintiff’s claim being
dismissed for non-compliance. If a Defendant has failed to avail
himself of these remedies
when he might reasonably have been expected
to do so, a court will look askance at an application by him to
dismiss the Plaintiff’s
action merely because of a delay in his
prosecution. Justice, after all, holds a two-edged sword; the
scales comprise two
pans, not one
.”
[39]
In exercising my discretion as to order the striking out of the
Defendant’s
Plea all of the above factors must
[24]
been taken into account. A further aspect which requires
serious consideration is the manner in which the Plaintiff’s
Particulars of Claim are formulated and in particular the formulation
of the alternative claims as referred to above.
[40]
No doubt, the draughtsperson of the Particulars of Claim had in mind
the so-called
“
double-barrelled
approach
”
when formulating the alternative claims. Such double-barrelled
approach is a procedural practice which for many years
was followed
in our law.
[25]
[41]
From the prayers to the Particulars
[26]
it is clear that the Plaintiff relies on the so-called double-barrel
approach.
[42]
Having regard to prayer (3), a further legal issue which potentially
could arise
would be prescription of the claim for damages.
[27]
[43]
The Constitutional Court in
Rademeyer
[28]
stated as follows:
[29]
“
[66] Of
cardinal importance is the fact that when the matter came before
Pickering J, Mr Ferreira had
plainly not suffered any
damages as yet and he therefore had no extant damages claim at that
time. It follows that Mr Ferreira
could not obtain an
order at that time relating to the liability for damages which had
not yet been sustained...”
[44]
Further on in the judgment
[30]
it is held that prescription in respect of a damages claim for breach
of contract commences to run at the earliest at the time
of breach.
[45]
In addition, and although obiter, the whole practice of utilizing the
double-barrelled
approach is now in serious doubt as in
Rademeyer
it was argued that the double-barrelled approach should be discarded.
[46]
In this regard the Constitutional Court held as follows:
[31]
“
[71]
… While the argument is, on the face of it, rather attractive,
I do not adopt any position in that regard,
as the matter can in my
view be disposed of within the purview of the double barrelled
approach
.”
[47]
At the very least therefore such contentious issues would have to be
addressed should
the Plaintiff seek judgment.
[48]
Taking all the above factors into consideration I am of the view that
I should exercise
my discretion by crafting an order which serves as
a sufficient deterrent and penalty for the Defendant’s
protracted failure
to comply with the court order whilst at the same
time ameliorating the effects of an order finally striking out the
Defendant’s
defence.
[49]
I am inclined to follow a procedure which was adopted in
Commercial
Motors v Caledonian Motors
[32]
where the Court granted an order directing the Respondent in that
matter to furnish particulars before a certain date and to show
cause
on a later date why the action should not be dismissed in the event
of its failing to do so.
In
Erasmus
[33]
it
is opined that the preferable order is that particulars be furnished
with the time fixed and to grant leave in the event of this
not being
done for an applicant to apply on the same papers for appropriate
relief, as was the order granted in the present instance.
[50]
Notwithstanding the aforegoing, and, as indicated above, in the
exercise of my discretion,
I intend to make such an order. If the
Defendant intends amending the Plea the response to the Request for
Trial Particulars can
of course be formulated with reference to the
proposed amendment to the Plea. Insofar as the costs of this
application is concerned,
the Defendant’s conduct throughout
has been nothing short of reprehensible and the Defendant, in effect,
has been granted
a further indulgence by the order as set out below.
[51]
I can see no reason, in the exercise of my discretion, why the
Defendant should not
be mulcted with an adverse costs award on the
scale as between attorney and client.
[52]
In the premises I make the following order:
(a)
The Defendant is directed to furnish a response to Plaintiff’s
Request
for Trial Particulars dated 23
rd
August 2023 (a
response pursuant to Rule 21) on or before the 3
rd
December 2024.
(b)
In the event of the Defendant failing to comply with the order in (a)
above, the Defendant is called upon to show cause on Thursday the
5
th
December 2024 why the Defendant’s Plea
should not be struck out with costs on the scale as between attorney
and client
on the Magistrates Court scale and why judgment should not
be granted in favour of the Plainitff.
(c)
The costs of this application on the scale as between attorney and
client
is to be paid by the Defendant.
A
BEYLEVELD
Acting
Judge of the High Court of South Africa
Appearances:
For the Applicant:
Adv. LR Kroon, instructed by Pieter Sellner Erasmus TRM Tax
Attorneys.
For
the Respondent:
Adv. N Karsan, instructed by D Gouws Incorporated.
[1]
The
Plaintiff in the action – for the sake of convenience
hereinafter referred to as “
the
Plaintiff
”
[2]
The
Defendant in the action – for the sake of convenience
hereinafter referred to as “
the
Defendant
”
[3]
There
is the usual adverse cost award made against the Defendant and a
further ancillary order is to the effect that in the event
of the
Defendant failing to comply with such order the Plaintiff is granted
leave to approach court on the same papers, duly
amplified, for
further relief
[4]
Defence
[5]
William
M Rose
Pleadings
Without Tears
A
Guide to Legal Drafting
Second
Edition at 154
[6]
A
so-called Retainer Agreement. A rectification of the Retainer
Agreement was also sought
[7]
For
non-payment or inadequate payment
[8]
It
is not understood why the action was instituted in the High Court
and not the Magistrate’s Court
[9]
In
paragraph 50 of the particulars of claim the first alternative is
for instance formulated as follows: “
In
the event of the Defendant failing to pay the amount mentioned in
paragraph 48 above the Plaintiff will then as a result suffer
damages in lieu of such performance in the amount of R196,487.00,
being damages which flow naturally and generally from such
breaches
of the initial contract and the retainer agreement.
”
[10]
Certainly
not a model of clarity
[11]
Caused
mainly by the Defendant
[12]
Such
as that the Plea was excipiable and that the Defendant wishes to
amend its Plea and Counterclaim and that it has not yet
done so and
that the order of Noncembu J should be set aside. It is further
baldly stated that the refusal to answer the request
for trial
particulars was not willful and contumacious because the Defendant’s
own pleadings are excipiable and it was
always the Defendant’s
intention to defend the matter
[13]
Transnet
Ltd v Rubenstein
2006 (1) SA 591
(SCA at [28] and Global
Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and
Others (Centre for Environmental Rights
and Others as amici curiae)
[2021]
2 All SA 1
(SCA) at [95]. Ancillary to such principle, Courts are
not allowed to have recourse to issues falling outside the pleadings
(or
in motion proceedings affidavits) –
Malusi
and Others v Voges and Others
2016 (3) SA 370
(CC) at [27]
[14]
Over
a lengthy period of time
[15]
2023
(4) SA 421
(CC) at [24]
[16]
Footnotes
omitted
[17]
See
for instance
Leask
v East Cape Forest Products CC t/a Highbury Treated Timbers
[2008] ZAECHC 171.
In this decision it was also held that contumacy
is equated with the willful refusal to comply with a court order.
[18]
For
instance the
Leask
decision. Two further decisions are referred to namely
Twins
Professional Communications CC v Goldbrands Investments Ltd
2020 JDR 1245 GP at para [34] and
Selero
(Pty) Ltd and Another v Chauvier and Another
1982 (3) SA 519
(T) at 522 B to C. There is also a reference to
Excelsior
Meubels Beperk v Trans Unie Ontwikkelings Korporasie Beperk
1957
(1) SA 74
(T) at 77D. The decisions of
Selero
and
Excelsior
were of course handed down prior to the substitution of Rule 21 in
1987. GN R2164 of 2 October 1987 and by GN R2642 of 27 November
1987
[19]
2000
(4) SA 147 (ECD)
[20]
More
importantly, and as indicated above, an order was granted and stands
[21]
ABSA
Bank Ltd v The Farm Klippin
49
CC
2000 (2) SA 211
(W) at 215 A to B. See also the authorities
listed in footnote 3 on D1 RULE 30A – 1 Van Loggerenberg
Erasmus
Superior Court Practice
2
nd
Edition
[22]
See
Szedlacsek
v Szedlacsek; Van der Walt v Van der Walt; Warner v Warner
and
the other authorities in the same footnote 3 in footnote 21 above
[23]
2002
(6) SA 551
(D&CLD) at 558 G to I
[24]
And
have
[25]
See
the leading case in this regard
Custom
Credit Corporation (Pty) Ltd v Shembe
1972 (3) SA 462
(A). See also Amlers Pleadings 10
th
Edition at 97
[26]
And
in particular prayer (3)
[27]
Rademeyer
v Ferreira
(2024)
ZACC 24
[28]
Majority
[29]
At
[66]
[30]
At
[69]
[31]
At
[71]
[32]
1960
(1) SA 366 (SR)
[33]
supra
Volume
2 at D1 RULE 21-4