IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)

CASE NO.: 2301/2016

In the matter between:

MEC FOR HELTH, EATERN CAPE
PROVINCIAL GOVERNMENT 1st Applicant

THE SUPERINTENDENT GENERAL
AND HEAD OF DEPARTMENT OF HEALTH 2nd Applicant

and

NGOZA MARASHA
OBO NOMSA EDITH MARASHA Respondent


JUDGMENT

ZONO AJ:

Introduction

[1] This is an interlocutory application brought by the applicants, the defendants
in the main action. The defendants in the main action is the Member of
Executive Council for the Department of Health and the Superintendent
General and Head of Department. They are applicants in this interlocutory

application. For the sake of clarity, I shall refer to them as such. The plaintiff
in the main action is Nomsa Edith Marasha and she is the respondent in the
instant Interlocutory application and I shall refer to her herein as such.

[2] The applicants seek herein a relief in terms of which the respondent’s claim
(plaintiff’s claim) in the main action be struck out with costs of this application
to be borne by the respondent. The application is strenuously opposed by t he
respondent and in so doing the respondent has delivered answering affidavit.
No replying affidavit has been filed by the applicants. The matter came for
hearing as an opposed matter.

Brief Background of the Matter

[3] The respondent, having instituted action proceedings on 05 th July 2016 in this
court, for applicants’ failure as an employer to pay respondent’s remuneration
and benefits attched to the position of Deputy Director Nursing: Dr Malizo
Mpehle Hospital. The applicant defended the matter and in so doing the
applicant delivered its plea, albeit after the filing of notice to plead. The plea
dated 05th October 2016 is fraught with bare denials and averments of lack of
knowledge. However, on 06 th November 2018 the matter was apparently
enrolled for trial and both parties were represented and the following order
was taken:

“ 1. The defendants/ respondents be and are hereby declared to have
failed to comply with paragraph 1 of the court order dated 5th
September 2017.
2.The defendants/ respondents defence be and is hereby struck out.
3. Judgment against the defendants/ respondent’s in favour of the
plaintiff / applicant on the merits.
4. Respondents pay costs on a punitive scale as between attorney and
own client.” (sic)

[4] For the sake of completion, the court order of 05th September 2017 referred to
in the court order of 06 th November 2017 compelled the applicants to comply
with Rule 35(14) within 30 days of granting of that order.

[5] The court order dated 04 th November 2018, properly construed, struck out
applicants’ defence and simultaneously entered judgment on merits against
the applicants. In effect, the applicants were found to be liable to the
respondent for any proven damages of the respondent. Mr Hanise, applicants’
attorney alleges in paragraph 3 of his affidavit supporting this application that:

“on 14 th November 2024 the defendants delivered a notice upon the
plaintiff requesting certain information.”

Although there is no such document in the court file, it appears to have been
accepted that the said request was served upon the respondent. It is apparent
that the request was made not only after the applicants’ defence had been
struck out, but also after the judgment had been entered.

[6] After the dies provided in the request had expired, the applicants apparently
caused a notice in terms of Rule 30A(1) to be served. Again, this notice is not
in the court file, notwithstanding reference made thereto in the papers. The
respondent accepts that this notice was served. This application is apparently
a consequence of respondents’ non reaction to the notice referred to above.
The respondent essentially con tests applicants’ entitlement to the requested
information or particulars as I will demonstrate hereinafter.

The Applicable Legal Framework

[7] The parties are ad idem that the request made by the applicants was a
request for further particulars. Reques t for further particulars is provided for
by and in Rule 21 of the Uniform Rules of Court (UCR). The Rule provides
thus:

“(1) Subject to the provisions of subrules (2) to (4) further particulars
shall not be requested.
(2) After the close of pleadings any party may, not less than 20 days
before trial, deliver a notice requesting only such further particulars as
are strictly necessary to enable him or her to prepare for trial. Such
request shall be complied with within 10 days after receipt thereof.
(3) The request for further particulars for trial and the reply thereto
shall, save where the party is litigating in person, be signed by both an
advocate and an attorney or, in the case of an attorney who, under
section 4(2) of the Right of Appearance in Courts Act, 1995 (Act No. 62
of 1995), has the right of appearance in the High Court, only by such
attorney.
(4) If the party requested to furnish any particulars as aforesaid fails to
deliver them timeously or sufficiently, the party request ing 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 to it seems meet.
(5) The court shall at the conclusion of the trial of own a ccord consider
whether the further particulars were strictly necessary, and shall
disallow all costs of and flowing from any unnecessary request or reply,
or both, and may order either party to pay the costs thereby wasted, on
an attorney and client basis or otherwise”.

[8] Rule 21(2) of URC refers to the close of pleadings. A request for further
particulars may be made only after the close of pleadings and not less than
twenty days before trial. The stage in the litigation at which the pleadings
close is provided and prescribed by and in Rule 29 of URC. Rule 29(1) of
URC provides:

“(1) Pleadings are considered closed if—
(a) either party has joined issue without alleging any new matter, and
without adding any further pleading;
(b) the last day allowed for filing a replication or subsequent pleading
has elapsed and it has not been filed;

(c) the parties agree in writing that the pleadings are closed and such
agreement is filed with the registrar; or
(d) the parties are unable to agree as to the close o f pleadings, and the
court upon the application of a party declares them closed.”

[9] To the extent I may be requested to deal with the features of the request for
further particulars as outlined in Rule 21(3) of URC, Rule 18(1) of URC
provides as follows:

“(1) A combined summons, and every other pleading except a
summons, shall be signed by both an advocate and an attorney or, in
the case of an attorney who, under section 4(2) of the Right of
Appearance in Courts Act, 1995 (Act No. 62 of 1995), has the right of
appearance in the High Court, only by such a ttorney or, if a party sues
or defends personally, by that party”.

Discussion and Analysis

[10] It is common cause that applicants’ defence was struck out on 06 th November
2018. Notwithstanding that event, the applicant requested further particulars
which ostensibly should have been required for purposes of enabling the
requester to prepare for trial. Having said above that no request for further
particulars appears to have been filed, meaning that no delivery thereof had
been effected1, such failure to deliver the request manifests noncompliance
with Rule 21(2) of URC. Service of the document alone does not constitute
delivery contemplated by and in Rule 21(2) of URC. Service of the document
must be accompanied by filing of the original document wit h the registrar of
the court. I am therefore unable to find that the request for further particulars
was delivered in terms of the rule sought to be invoked2.


1 Rule 1 of URC defines the word delivery to mean; to serve copies on all parties and file the original
with the registrar.
2 Rule 21 of the Uniform Rules of Court.

[11] Entitlement to the particulars must strictly follow delivery of the proper and
compliant request for those particulars. A litigant who has himself not
complied with the rule seeking to enforce same must not get the relief or
remedy the rule is providing. A drastic step having an effect of dismissing
litigant’s claim on the basis of the allege d procedural failure cannot lightly and
randomly be embarked upon. The court itself must ensure that all the boxes
have been ticked before dismissing litigants claim, otherwise that would be an
unnecessary and arbitrary invasion to party’s right to acce ss to court 3. It
therefore makes sense that a party who seeks compliance with a particular
provision, must himself have complied with the provision and the related
provisions. The court is therefore justified for not coming to the aid of a
delinquent litigant.

[12] It is common practice that practitioners only serve court documents or
process just to evade or stave off consequences of an application for default
judgment; and once they secure their colleagues agreement to extend a life
line in litigation, they forget about filing the documents or process in court.
Litigant and practitioners are discouraged from the tendency of not filing
documents in court once they secure agreements with their colleagues. This
conduct, as it does not only offend the rules, it also im perils the proper
functioning of the court, it should in future attract punitive costs.

[13] In the light of the finding I made above, applicants’ application should fail only
on this basis. Even if I would be found to be wrong on this ground, I would sti ll
find against the applicants on another ground.

[14] It is fundamentally important that a party is only entitled to call for such
further particulars as they are strictly necessary to enable him to prepare for
trial4. The purpose of permitting a par ty to call for further particulars for trial is

trial4. The purpose of permitting a par ty to call for further particulars for trial is
three pronged. Firstly, it is to prevent surprise during trial; secondly, that the
parties should be told with greater precision what the other is going to prove

3 Section 34 of the Constitution provides that everyone has the right to have any dispute that can be
resolved by the application of the law de cided by in a fair public hearing before a court or where
appropriate, another independant and impartial tribunal or forum.
4 Rule 21(2) of URC.

in order to enable his opponent to prepare h is case to combat counter
allegation; and thirdly having regard to the aforegoing nevertheless not to tie
the other party down and limit his case unfairly at the trial5.

[15] There is authority for proposition that in determining what particulars fall
within the scope of the rule, one would look primarily at the pleadings 6. A
party cannot, however, be required to give particulars in relation to a mere
denial of allegations made by his opponent, such party cannot be required to
furnish particulars of any aspect placed in issue by such denial 7. I have
indicated above that applicants’ plea, before it was effectively set aside, was
fraught or replete with bare denials and mere allegations of lack of knowledge
with plaintiff being put to proof thereof. It is not desirous to direct the litigant to
furnish particulars in circumstances where the requesting party’s pleading is
marred with bare denials. Even if the applicants’ plea was not set aside, and
still extant, it would not be necessary to require t he respondent to furnish
applicants with the particulars for trial preparation.

[16] The situation in this case is exacerbated by the fact that applicants’ bare
denial plea was effectively set aside on 06 th November 2019 when applicants’
defence was struc k out peri passu with the judgment being entered in favour
of the respondent on merits. Whilst the court would be justified to refuse to
direct the provision of the particulars in circumstances where the plea is
replete with bare denials, it is even more a pposite to refuse such particulars
when there is not even a plea and or a defence. Absence of a plea and or a
defence that would be canvassed and championed in the trial justifies the
refusal of the particulars.

[17] In civil proceedings, it is unprecedented that a party can prepare for trial when
or in respect of which he has no claim or defence. It must be borne in mind

or in respect of which he has no claim or defence. It must be borne in mind
that further particulars are required only to enable the party to prepare his

5 Thompon v Barclays Bank DCO 1969(2) SA 160(W) at 165; Schmidt Plant Hire (Pty) Ltd v
Pedelli 1990 (1) SA 398 (D) at 402.
6 Hardy v Hardy 1961 (1) SA 643 (W) at 646.
7 PJ v HJ (unreported) FB Case No A55/2022 dated 10 November 2022 Para 16 and 18 - Full Court
Division; Swart v De Beer 1989 (3) SA 622 (E)AT 625.

case. A case is either made out in the plaintiff’s particu lars of claim8, or in the
defendant’s plea 9, where the litigant shall clearly and concisely state all
material facts upon which he relies for his claim or denial. The defendant sets
out his defence in the plea. A plea is a document without which a defend ant
may raise his defence. It is trite that a defendant cannot rely upon a defence
which he has not pleaded. As a corrollary, a defendant whose defence in the
plea has been struck out has no case to prepare for trial. It is therefore going
to be without a purpose to compel that further particulars be furnished to the
applicants herein whose defence had been struck out by this court on 06 th
November 2018. The applicants have no case to prepare for trial.

[18] The requested further particulars must “ strictly” be necessary to enable the
applicant to prepare his case for trial. A meaning must be attached to the
word “strictly” in the subrule. One cannot treat that word as if it does not
exist10. It is impermissible to do so, as it militates against a long sta nding
precept of interpretation that every word must be given a meaning, and that
no word should be ignored, or treated as tautologous or superfluous 11. A
fundamental tenet of statutory interpretation is that the words in a statute
must be given their grammatical meaning, unless to do so would result in an
absurdity12.

[19] The word “strictly” demands sternness and strictness with which the provision
must be followed. The word is an adverb requiring the exact obedience with
the Rule 21(2) of URC. South African Concise Oxford dictionary defines the
word “strict” as follows:

“1. Demanding that rules concerning behaviour are obeyed. (of a rule)
demanding total compliance; rigidly enforced.

8 Rule 18(1) of URC.
9 Rule 22(2) of URC.
10 Ndaba v Ndaba 2017 (1) ALL SA 33 (SCA); 2017 (1) SA 342 (SCA) Para 54.
11 African Product (Pty) Ltd v AIG South African Ltd 2009 (3) SA 473SCA Para 13, National

11 African Product (Pty) Ltd v AIG South African Ltd 2009 (3) SA 473SCA Para 13, National
Credit Regulator v Opperman and Others 2013 (2) SA (1) (CC) PRA 99; Kilburn v Tuning (Pty)
Ltd 2015 (6) SA 244 Para 15.
12 Cool Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 (CC) 2014 (8) BCLR 869 (CC)
Para 28; SATAWU and Another v Garvas and others 2013 (1) SA 83; 2012 (8) BCLR 840 (CC)
Para 37.

2.Following rules or beliefs exactly.
3.not allowing deviation or relaxation.”
The word is not defined in the Uniform Rules. The dictionary or grammatical
meaning of the word fits and aligns with the context of Rule 21 of URC. I
therefore come to a conclusion that provisions of Rule 21(2) of URC are
peremptory. A statutory requirement construed as peremptory usually needs
exact compliance f or it to have the stipulated legal consequences, and any
purported compliance falling short of that is a nullity13.

[20] It is imperative that the particulars requested must be strictly, exactly and
sternly be necessary to enable the applicant to prep are his case for trial. If
there is no case in the form of a defence of the applicants, particulars are not
necessary to be furnished. A request made for furnishing of particulars
notwithstanding that those particulars are not strictly necessary for
preparation of a case is a nullity. It is not only on the basis of the authority of
Shalala referred to above, but also on the basis of Schiehoiut.14 As a general
rule non -compliance with a peremptory provision results in a nullity. 15 The
request for further par ticulars was made contrary to the imperative provisions
of Rule 21(2) of URC, which exercise resulted in a nullity.

[21] In the circumstances, the applicants were not only not entitled to the
particulars owing to the fact that they are not necessary to e nable the
applicants to prepare for their case. But also the request amounts to a nullity
for it does not comply with Rule 21(2) of URC. Accordingly, the applicants
cannot be successful in this application.

[22] Even if there was basis for the invocation of Rule 21(4) of URC, an application
to strike out respondent’s claim would not be granted without first having
sought a less invasive order compelling the furnishing of the said particulars.
It is not clear from applicant’s papers why the applicant opted for this

It is not clear from applicant’s papers why the applicant opted for this
application instead of an application to compel (atleast) in terms of the same

13 Shalala v Klerksdorp Town Council and another 1969 (1) SA 582 (T) at 587 A-C.
14 Schiehout v Minister of Justice 1926 AD 99 at 110.
15 LAWSA, Volume 25, Part 1, Page 399 Para 366.

Rule 21(4) of URC, which provides for the striking out. In looking into this
conduct, one must not lose sight of the fact that the applicants, who are the
defendants in the main action have not disclosed any defence to meet
respondent’s claim in the main action. I reiterate that this application would
not be appropriate in the circumstances where no defence had been
disclosed in the plea. What aggravates the situation is the fact that applicants’
defence had been struck out on 06 th November 2018. The striking out of
applicants’ defence left no lis in terms of which the applicants would
meaningfully and properly litigate against the respondents and convey a
defence to the court.

[23] The respondents have contended for costs on a punitive scale. The
respondent seeks such kind of costs order on the basis that applicants
conduct is abusive of the process of this court. They cited instances of
postponements at the instances of the applicants. The respondents come to a
conclusion that the applicants are dilatory in this matter.

[24] In the amalgam of all this, I am of the view that applicants’ conduct, not only
in their previous engagement with the court and respondent, but also in the
institution of this application is indeed dilatory and consequently abusive of
the court process. Dilatory conduct und er the pretext that a party is invoking
the rules of court is not to be accepted. The object of the rules is to secure the
inexpensive and expeditious completion of litigation before courts: they are
not an end in themselves 16. The rules should be interpre ted and applied in a
spirit which will facilitate the work of the courts and enable litigants to resolve
their disputes in as speedy and inexpensive a manner as possible 17. They are
designed to ensure a fair hearing and should be interpreted in such a way as
to advance, and not to reduce the scope of the right to a fair trial entrenched
in section 34 of the Constitution. 18 In my view this application is not only

in section 34 of the Constitution. 18 In my view this application is not only
vexatious, but also frivolous. There is quite a good ground for costs on a
punitive scale.

16 Social Justice Coalition v Minister of Police 2022 (10) BCLR 1267 (CC) Para 52-54.
17 African Development Bank v TN 2019 (2) SA 437 (GP).
18 DF Scott (EF) (Pty) Ltd v Golden Valley Supermarket 2002(6) SA 297 (SCA) at G-H.

Conclusion

[25] Having arrived at the above mentioned findings, it is not necessary to deal
with the point which both parties thoroughly canvassed, which is the point of
whether the pleadings in the main action at the time of the request for further
particulars had closed. Mr Kunju SC argued that pleadings in the main action
when the applicants requested further particulars had not closed. He said so
because the applicants’ defence in the main action had been struck out and
consequently the applicants had no plea. This arg ument is premised on the
fact that pleadings closed after the filing of the defendants’ plea. On the other
hand, applicants’ Counsel Mr Notshe SC argued that pleadings close when
there is no subsequent pleading filed. Pleadings can close once the dies for
filing a notice of appearance to defend expires and no notice is filed;
alternatively, once the time for filing of plea expires with no plea filed, so it is
argued that pleadings close.

[26] It is common cause that Rule 29(1)(b), (c) and (d) does not fi nd application
on the facts of this matter. It is well accepted that there is no plea upon which
replication could be filed; no agreement between the parties as to the close of
pleadings and there is no court order declaring the pleadings closed 19. Mr
Notshe SC seemingly argued on the basis of Rule 29(1)(a) which provides
that:

“Pleadings are considered closed if either party has joined issue
without alleging any new matter and without adding any further
pleading.”

[27] This argument deserves a short shrift as it is not predicated on the applicants’
papers. It is trite that applicant must stand or fall by his founding papers. To

19 Rule 29(1)(a)-(d) of the URC.

suggest otherwise would be antithetical to the dictum made by the Supreme
Court of Appeal in Slabbert20 Mhlantla JA observed as follows:

“11. The purpose of the pleadings is to define the issues for the other
party and the court. A party has a duty to allege in the pleadings the
material facts upon which it relies. It is impermissible for a pl aintiff to
plead a particular case and seek to establish a different case at the
trial”.21

[28] In any event, in modern practice litis contestatio is taken as being
synonymous with close of pleadings, when the issue is crystalized and
joined22. Joinder of issues operates merely as a denial of facts and not as
denial or admission of statements of law 23. The effect of litis contestatio is to
freeze the plaintiff’s rights as at that moment 24. In this case the applicant had
not joined issues with re spondent’s case, therefore there is no joinder of
issues herein.

[29] When applicants’ defence was struck out, the status quo reverted, and the
pleadings reopened. The matter became undefended. If it were not for the fact
that there is a judgment entered on merits, the matter would have been at a
stage where there is only a notice of appearance to defend. It would have
been opened to the respondent to invoke the provisions of Rule 26 and
require the applicant to file its plea, which preparatory step would asher the
respondent into a default stage. In this case the judgment on merits had been
entered. It is therefore available to the respondent to press for default
judgment on quantum. My voice is not alone with regard to the fact that the
matter is at this stage undefended. In Wilson25 it was held that:


20 Minister of Safety and Security v Slabbert 2010 (2) ALL SA 474 (SCA) Para 11.
21 Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 107.
22 Van Ransburg v Condoprops 42 (Pty) Ltd 2009 (6) SA 539 (E) at 542 A.
23 Erasmus: Superior Court Practice, Second Edition-D1-349, issue 10, 2019.

23 Erasmus: Superior Court Practice, Second Edition-D1-349, issue 10, 2019.
24 Natal Joint Municipal Pension Fund v Endumeni Municipalit y 2012 (4) SA 593 (SCA) at 601 D -
F.
25 Wilson v Die Afrikaans Pers Publikasies (EDMS) BPK 1971(3) SA 455 (T) at 462 462 H-463 B.

“The striking out of a defendant’s defence is an extremely drastic step
which has the consequences that the action goes forward to a trial as
an undefended matter. In the case if the orders were granted it would
mean that a trial court would eventually hear this action without
reference to the justification which the Defendant has pleaded and
which it might conceivably be in a position to establish by evidence. I
am accordingly of the view that very grave step will be resorted to only
if the court considers that a Defendant has deliberately and
contemptuously disobeyed its order to furnish particulars.”

[30] In the conspectus of all the above it is plain that applicants’ case is
unsuccessful. The first applicant is liable to pay respondent’s costs on a
punitive scale. In Kalil26 Leach JA held that:

“30. That having been said, the manner in which the Municipality
approached the appellants’ application militates against a costs order in
its favour. This is public interest litigation in the sense that it examines
the lawfulness of the exercise by public officials of the obligations
imposed upon them by the Constitution and national legislation. The
function of public servants and government officials at national,
provincial and municipal levels is to serve the public, and the
community at large has the right to insist upon them acting lawfully and
within the bounds of their authority. Thus where, as here, the legality of
their actions is at stake, it is crucial for public servants to neither be coy
nor to play fast and loose with the truth. On the contrary, it is their duty
to take the court into the ir confidence and fully explain the facts so that
an informed decision can be taken in the interests of the public and
good governance. As this court stressed in Gauteng Gambling Board
and another v MEC for Economic Development, Gauteng, our present
constitutional order imposes a duty upon state officials not to frustrate
the enforcement by courts of constitutional rights”.

the enforcement by courts of constitutional rights”.


26 Kalil NO and others v Mangaung Metropolitan Municipality and others 2014 (3) ALL SA 291
(SCA); 2004 (5) SA 123 SCA Para 30.

Order

[31] In the result I would make the following order:

1. The application is dismissed.
2. The first applicant is directed to pay respondent’s costs on a punitive
attorney and client scale C.


________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)


APPEARANCES:

For the applicants :ADV NOTSHE SC
Instructed by : THE STATE ATTORNEY
Broadcast House
94 Sission Street
Fortgale
Mthatha
Tel: 047 501 9900
Ref: 1139/16-A8H (Mr Hanise)
Email: Xhanise@justice.gov.za

For the respondent : ADV KUNJU SC
Instructed by : MAFUNGO TSHAKA INC
No. 21 Owen Street
Mthatha
Cell :073 046 7923/ 083 747 2386
Email: mafungotshaka@gmail.com

Matter heard on : 14th August 2025

Delivered on : 26 August 2025