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[2026] ZAGPJHC 438
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Annette Clark Attorneys INC v SBV Services (Pty) Limited (136433/2025) [2026] ZAGPJHC 438 (24 April 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
Case
Number: 136433/2025
REPORTABLE:
NO
OF
INTREST TO OTHER JUDGES: NO
REVISED:
NO
ANNETTE
CLARK ATTORNEYS INC
RESPONDENT /PLAINTIFF
AND
SBV SERVICES (PTY)
LIMITED
APPLICANT / DEFENDANT
JUDGMENT
MAKUME,
J
:
INTRODUCTION
.
1.
In this matter, the
applicant who is the defendant in the main action, seeks an order in
terms of Rule 30(2)(B) of the Uniform Rules
of Court declaring that:
1.1.
The plaintiff's notice
in terms of Rule 30(2)(B) which was delivered on 24 February 2025 is
an irregular step in the proceedings
because the plaintiff, having
done so, proceeded to file a replication to the defendant's special
plea.
1.2.
That by so doing the
plaintiff is precluded from instituting the Rule 30 application in
terms of Rule 30(2)(a).Rule 30(1) and (2)
reads as follows:
i.
“
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.
ii.
An application in terms
of sub-rule 1 shall be on notice to all the parties specifying
particulars of the irregularity or impropriety
alleged and may be
made only if –
a.
The applicant has not
himself taken a further step in the cause with knowledge of the
irregularity.
b.
The applicant has
within ten days of becoming aware of the step by written notice
afforded his opponent an opportunity of removing
the cause of
complaint within 10 days.
Background
facts
.
2.
I find it necessary at
this stage to set out a brief narrative of certain facts and
circumstances giving rise to the litigation
which bear on the
questions to be decided as they emerge from the papers. In
doing so I shall refer to the parties by their
nomenclature used in
the action proceedings.
3.
On 24 November 2024 the
plaintiff issued summons against the defendant claiming payment of an
amount of 2.5 million alternatively
payment of the sum of 3.9 million
being fees for professional services rendered.
It
is common cause and not in dispute that the plaintiff acted as the
defendant's attorneys in a number of legal matters over a
period.
4.
A dispute arose as to
the reasonableness of their attorney and client statement of account,
as a result the defendant demanded that
the plaintiff submits their
statement of account and bill for taxation by the taxing master at
this court.
The
plaintiff did not do that, instead proceeded to issue summons as
indicated above.
5.
On 11 December the
defendant entered an appearance to defend the action. On 11
February 2025 plaintiff served on the defendant
a notice of bar,
calling on the defendants to file their plea to the plaintiff's
particulars of claim within five days, failing
which they shall be
barred
ipso facto
and judgment will be entered against them by default and in their
absence.
6.
On 12 February 2025, a
day after receiving a notice of bar, the defendants filed and served
a notice of motion in terms of Rule
27 of the Uniform Rules seeking
an order staying the action pending or until the plaintiff's fees
shall have been taxed by the
master.
7.
Two days later on 14
February 2025 the defendant filed and served a special plea to the
plaintiff's claim pleading that:
7.1. On 4 December 2024
SBV demanded that plaintiff's fees be subjected to taxation,that
until the fees claimed shall have been
taxed the action should not
proceed.
7.2. On 24 February 2025
the plaintiff entered appearance to oppose the stay application in
terms of Rule 27. On the same
day, the plaintiff filed a
28-page notice which he described as a notice in terms of Rule
30(2)(B).
8.
In that notice, the
plaintiff informed the defendant that it is affording the defendant a
period of 10 days to remove the irregularity
and improper proceedings
and steps as listed in Schedule A attached to the notice.
Schedule A is a long, convoluted, and
repetitious repetition of the
purpose of claim. It is in paragraph 12 of that Schedule A
where the plaintiff says that the
stay application filed by the
defendant is an irregular step and also in paragraph 13, the
plaintiff identifies the special plea
also as an irregular step.
9.
On 3 March 2025 the
plaintiff filed his replication to the defendant's special plea.
That replication also stretches for some
28 pages, containing mostly
repetitive and irrelevant averments. Simultaneous to that an
application for summary judgment
was also filed, which is over 30
pages long.
10.
On 17 March 2025 the
plaintiff filed and served a notice in terms of Rule 30(1) in which
it sought an order striking out the defendant's
notice of intention
to defend dated 11 January 2025, the defendant's application dated 12
February being the stay application in
terms of Rule 27, and lastly,
the defendant's special plea dated 14 February 2025.
11.
It was on receipt of
that notice that on 24 March 2025 the defendants then filed and
lodged this application as set out in paragraph
1 above.
The
plaintiff had been given notice in terms of Rule 30(1) to remove the
complaint, but failed to do so.
THE
LAW APPLIED TO THE FACTS
.
12.
The purpose of Rule 30
is to afford a party to an action the opportunity to ask the court to
set aside an irregular step which has
been taken by its opponent and
which is prejudicial.
13.
It is common cause that
an aggrieved party that is applicant in a Rule 30 application
forfeits to have the offending steps set aside
if he has taken any
further step in the course of the knowledge of the offending step.
In the matter of
Jowell
versus Bramwell-Jones
1998
(1) SA 836(w)
at 905 his Lordship, Heher J said the following.
“
A
further step in the proceedings is one which advances the proceedings
one stage nearer completion and which objectively viewed
manifests an
intention to pursue the course despite the irregularity.”
14.
In this matter, the
plaintiff, after having identified and given note that the
defendant's notice to defend the application to stay
as well as a
special plea were irregular steps, the plaintiff proceeded on 5 March
2025 to file a replication to the defendant's
special plea.
That, in terms of the law, put paid to the plaintiff's application of
irregularity in the defendant's pleadings
and by so doing the
plaintiff took an irregular step.
15.
An application to set
aside an irregular step may only be brought if the applicant has not
himself taken a further step in the course
with knowledge of
the irregularity. The launching by the plaintiff of its Rule 30
notice on 17 March 2025
constitute an irregular step
because by 5 March 2025 the plaintiff took a further step
in the proceedings by filing an
extensive replication to the special
plea.
16.
A replication is a
substantive pleading that closes the pleadings and by its very nature
advances the litigation one step nearer
the completion. It does
not arrest the proceedings, it propels them forward. It was
found in Odendaal versus De Jager
1961 (4) SA 307
(0 at 310) that the
filing of a replication constitutes a further step.
17.
In the matter of Klein
versus Klein
1993 (2) SA 648(B)
it was held that knowledge of the
irregularity is knowledge of the step taken, whether or not coupled
with an appreciation that
the step was irregular or improper.
18.
All the defenses raised
by the plaintiff in this application have no merit and stand to be
dismissed. The point
in
limine
that the
defendant itself took a further step in respect of the stay
application by setting it down is misguided. The stay
application was removed from the roll and could thus not qualify to
be a further step. The stay application would never have
advanced the proceedings.
It
was aimed at halting the proceedings. The same goes for the
application for summary judgment by the plaintiff.
19.
The next defense raised
is set out in paragraph 25.4 of the plaintiff's answering affidavit.
In that paragraph, the attorneys
seem to suggest that the determining
factor in deciding whether a party has taken a further step for
purposes of Rule 30(2)(A)
is the party's intention. That is not
correct and is a misunderstanding of the rules.
In
the matter of Minister of Law-and-Order v Taylor NO
1919 (1) SA 165E
the court held that knowledge referred to in the rule is knowledge
that a step has been taken whether or not coupled with an
appreciation
that the step was irregular or improper. Clark
attorneys knew that it had taken a step by filing a replication to
the special
plea. It is an objective test.
The
plaintiff is a law firm in this regard and they are presumed to know
the law including the rules of this court.
20.
The replication engaged
on all corners with a special plea on its merits, thus moving the
action closer to completion. I do
not deem it necessary to deal
with all further defenses raised being the alternative formulation of
the replication as well as
reliance on the provisions of Section 173
of the Constitution as both are without merit and fall to be
rejected.
21.
There is clear
prejudice that that will befall the defendant if the plaintiff is
permitted to advance argument on his Rule 30 notice
as this will have
the effect of striking out two procedural steps raised by the
defendant being the stay application. It
also touches on the
merits whether fees should first be taxed or not, where there is a
clear dispute on reasonableness.
22.
In conclusion, the
plaintiff has unnecessarily overburdened this application with long
and repetitious material which serve no real
purpose in raising a
laudable defense. This calls for a punitive cost order. In the
result, I make the following order:
Order
.
1. The defendant's
application in terms of Rule 30(1) and (2) is upheld. The
plaintiff's replication to the special plea is
declared irregular and
is set aside.
2. The plaintiff is
ordered to pay the defendant's tax cost on scale C.
MAKUME
J
JUDGE
OF THE HIGH COURT
JOHANNESBURG
Appearance
For
the Respondent / Plaintiff:
Annette
Clark Attorneys
For
Applicant / Defendant :
Tabacks
Attorneys