IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO. 1572/2024
In the matter between:
ASANDA GIDANA PLAINTIFF
and
MAKANA MUNICIPALITY FIRST DEFENDANT
THE MUNICIPAL COUNCIL:
MAKANA MUNICIPALITY SECOND DEFENDANT
THE EXECUTIVE MAYOR:
MAKANA MUNICIPALITY THIRD DEFENDANT
THE MUNICIPAL MANAGER:
MAKANA MUNICIPALITY FOURTH DEFENDANT
JUDGMENT
Rugunanan J
[1] The parties are referred to as in the main action.
[2] The plaintiff instituted proceedings in which she claims damages for
breach by the defendants (collectively, the municipality) of her employment
contract.
[3] In accordance with rule 30(1) of the uniform rules of court, the issue
presently for determination arises from an application by the municipality to
set aside as premature the plaintiff’s notice of bar delivered on 26 September
2024.
[4] This highpoint in the timeline was preceded by two consecutive notices to
remove causes of complaint in terms of rule 23(1) (a). The notices were
delivered by the municipality on 12 June 2024 and on 17 September 2024,
(hereafter the first notice and the second notice, respectively). Both notices
were identical in form and indicated that should the causes of complaint not be
removed within fifteen days the municipality will note an exception and/or
apply for the setting aside of the summons and particulars of claim as an
irregular step.
[5] In response to the first notice the plaintiff delivered a notice of intention
to amend. Her amen ded particulars of claim followed on 28 August 2024.
Dissatisfied therewith the municipality delivered its second notice. Its content
was similar to the first notice but suitably adapted. The plaintiff’s notice of bar
that followed the second notice, was, according to the municipality, delivered
without her addressing the issues in the second notice or anticipating delivery of
an exception or, as indicated in heads of argument, possibly a plea that would
have been due by 9 October 2024.
[6] Contending that an exception is a pleading the plaintiff submitted that, in
relation to the first notice, rule 23(1)(b) obliged the municipality to have filed its
exception within ten days no later than 11 September 2024.
[7] For reasons to follow the contention is unsustainable.
[8] In practice a party faced with a notice under rule 23(1) has only two
courses: either to amend the pleading in question and remove the causes of
complaint by inserting the necessary particularity, or, in the alternative, to stand
by the pleading and face the risk of an exception.1
[9] In response to the municipality’s first notice, the course adopted by the
plaintiff was to deliver a notice of intention to amend. That notice, delivered on
1 July 2024, incorporated the following wording:
‘[U]nless written objection to the proposed amendment is delivered within 10 (ten) days of
delivery of the notice, the amendment will be effected.’
[10] The municipality did not object to the amendment and on 14 August 2024
the plaintiff delivered her amended particulars of claim at an address in East
London. Delivery was not effected on the service address in Makhanda
nominated by the municipality in its notice to defend the action. Delivery of the
amended particulars of claim was thereafter properly effected at the latter
address on 28 August 2024. The amended particulars of claim, however, did
not, according to the municipality, meaningfully address the various objections
contained in its first notice, and for that reason the municipality delivered its
second notice on 17 September 2024.
[11] In her heads of argument the plaintiff criticises the municipality for
‘playing games’ and for stalling the action by attempting to engineer a new
1 National Union of SA Students v Meyer; Curtis v Meyer 1973 (1) SA 363 (T) at 364D-367D and Erf 1026
Tygerberg CC v Pick 'n Pay Retailers 2005 (6 SA 527 (C) para 23.
basis for objecting. The municipality contends, and correctly in my view, that it
acted well within the prescripts of rule 28(8). For that reason the notice of bar
was not an appropriate response to the second rule 23(1) notice and was
premature.
[12] Rule 28(8) reads:
‘Any party affected by an amendment may, within 15 days after the am endment 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.’
[13] Subsequent to 28 August 2024, delivery of the municipality’s second rule
23(1) notice on 17 September 2024 occurred within the purport and in the
timeframe stipulated in rule 28(8).
[14] The notice of bar was premature because the 15 day period in terms of
rule 23(1) reckoned until 9 October 2024 and specif ied in the municipality’s
second notice for the delivery of an exception had not yet expired.
Accordingly, delivery of the plaintiff’s notice of bar was premature and the
notice falls to be set aside.
[15] There remains the issue of costs.
[16] The municipality co ntended for attorney and client costs including the
costs consequent upon the employment of counsel on scale C in accordance
with rule 67A. The founding affidavit to this application details the extensive
efforts made by the legal representatives of the mu nicipality to persuade the
plaintiff to reconsider her position by removing the notice of bar. In argument
the plaintiff was reprimanded for having caused unnecessary and frivolous
litigation by her unreasonable attitude in seeking to defend the incorrect course
adopted by her. It was argued that the court should mark its disapproval of her
conduct by ordering her to pay such costs. The plaintiff was also criticised for
the answering affidavit deposed by her attorney in which he vacillated on the
subsistence or otherwise of an amendment to the particulars of claim. It was
contended furthermore that the plaintiff’s accusation that the municipality was
trying to stall the litigation over months, was baseless.
[17] The municipality on the other hand is not entirely free from censure. It
intended all times to note an exception or invoke proceedings to set aside the
summons and particulars of claim as an irregular step. This much is clear from
its first and second notices. In argument the municipality attempted to proc eed
on a different premise by suggesting that it might have sought to file a plea. In
that regard it sought refuge in Nqabeni Attorneys Incorporated v God Never
Fails Revival Church and Others 2, in which rule 28(8) was held not to apply in
circumstances where a declaration had been amended before a plea had been
filed and it was found that the period within which a plea ought to be filed
meant that rule 22(1) became applicable.
[18] In keeping with the intended course conveyed in the first and second
notices, t he following submission is made in the municipality’s heads of
argument:
‘But one does not need to rely on case law. The clear wording of rule 28 makes express
provision for the procedure contemplated in uniform rule 23 to be followed after an
amendment has been effected.’
[19] As the decision arrived at in this matter is based on the effect of rule
28(8) it is unnecessary to comment on the applicability or otherwise of Nqabeni.
[20] In these circumstances I do not think that attorney client costs are
warranted.
2 (40739/2017) [2019] ZAGPJHC 51 (7 March 2019) paras 7-9 and 11-12.
[21] This brings me to the scale of fees for counsel. The purpose served by
rule 67A is that it permits a court to exercise control over the maximum rate at
which counsel’s fees can be recovered under an award of costs on the party and
party scale. The arguments we re brief and straightforward and the concise
affidavits filed by the parties did not manifest any technical intricacy. Oral
arguments were succinct. The merits of the action did not assume relevance and
the hearing lasted less than an hour. My sense is that scale A is applicable and is
more than sufficient for recovery of counsel’s fees.
[22] The following order issues:
1. The plaintiff’s notice of bar dated 26 September 2024 is set aside as an
irregular step.
2. The plaintiff is ordered to pay the costs of the applic ation, such costs
to include the fees of counsel on scale A of uniform rule 67A.
____________________________
M. S. RUGUNANAN
JUDGE OF THE HIGH COURT
Appearances:
For the Applicant (Defendants): P N Kroon SC , Instructed by
Wesley Pretorius & Associates Inc., East London c/o Netteltons 118A High
Street, Makhanda, Tel 046-622 7149 (Ref: Ms Pienaar).
For the Respondent (Plaintiff): S Tshikila , Instructed by PN
Moletsane Inc., East London, c/o Mfundo Ntshwaxa Attorneys, 118A High
Street, Block B, Makhanda, Tel 046-622 2044 (Ref: Mfundo).
Date heard: 13 November 2025.
Date delivered: 02 December 2025.