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[2013] ZAWCHC 95
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WP Fresh Distributers (Pty) Ltd v Klaaste NO and Others (16473/12) [2013] ZAWCHC 95 (23 April 2013)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
HIGH COURT, CAPE TOWN)
Case no: 16473/12
In the matter
between:
WP FRESH
DISTRIBUTORS (PTY) LTD
................................................
Applicant
and
HENDRIK
JACOBUS KLAASTE N.O.
..........................................
First
Respondent
CAROLINA
EPAFRAS N.O.
.......................................................
Second
Respondent
JOHN
HENRY JONES N.O.
...........................................................
Third
Respondent
RIAAN
TIETIES N.O.
...................................................................
Fourth
Respondent
WILLEM
VAN ZYL N.O.
................................................................
Fifth
Respondent
ABRAHAM
ADAMS N.O.
...............................................................
Sixth
Respondent
LORENZO
HEYNS N.O.
............................................................
Seventh
Respondent
CORNELIA
VAN ZYL N.O.
.........................................................
Eighth
Respondent
JOHANNA
CUPIDO N.O.
..............................................................
Ninth
Respondent
EDWARD
GERHARDUS STEVENS N.O.
...................................
Tenth
Respondent
JUDGMENT: 23APRIL
2013
Schippers J:
On 27 August 2012
the applicant instituted motion proceedings foran order granting
judgment against the respondents in the sum
of R714 011.01, jointly
and severally. The applicant’s claim arises from a suretyship
agreement in terms of which the respondents,
in their capacities as
the trustees of KEP Boerdery Trust (“
the Trust
”),bound
themselves as sureties and co-principal debtors for amounts owed to
the applicant by Castle Crest Properties 22
(Pty) Ltd(“
Castle
Crest
”).
Instead of
delivering their answering affidavits, on 11 October 2012 the
respondents delivered a document headed, respondent’s
notice
in terms of rule 23(1) (“
the notice
”). It states
that the respondents take exception to the applicant’s notice
of motion on the basis that it discloses
no cause of action and
moreover is vague and embarrassing. In essence, the notice states
that it is unclear upon what facts or
circumstances the applicant
relies for its claim for judgment against the respondents in the sum
of R714 011.01; and that the
reference to “
judgment
”
in prayer 1 of the notice of motion appears to be inconsistent and
in direct conflict with the principles governing judgments,
and
accordingly is vague and embarrassing. The applicant is then given
an opportunity to remove the cause of complaint which
renders
thenotice of motion vague and embarrassing.
The applicant did
not respond to the notice, hence this application that the exception
be upheld.
The first question
that arises is whether the respondents may invoke rule 23 in
relation to an application. MrTsegarie, who appeared
for them,
submitted that they may raise an exception to an application because
rule 23(1) refers to “
any
pleading
”
;and
that in motion proceedings the affidavits constitute both the
pleadings and the evidence.
1
To my mind, the
answer to the question lies in the proper construction of the Rules
of Court. Rule 23(1)provides inter alia that
where any pleading is
vague and embarrassing or lacks averments necessary to sustain an
action, the opposing party may deliver
an exception thereto and may
set it down for hearing; provided that where a party intends to take
an exception that a pleading
is vague and embarrassing, the opponent
must be given an opportunity of removing the cause of complaint.
However, in applications
there is no recognized procedure for
raising an exception before the case comes to trial.
2
Instead,
rule 6(5)(d)requires any person opposing an order sought in the
notice of motion to notify the applicant in writing that
he or she
intends to oppose the application; and to deliver an answering
affidavit within 15 days of the notice of intention
to oppose.
3
If a respondent
intends to raise only a question of law, he or she is required to
deliver a notice of this intention, setting
forth the question of
law.
4
Thus
a respondent who wishes to raise a preliminary point that a case is
not made out in the founding papers, must do so in the
answering
affidavit.This construction is buttressed by rule 6(14) which
expressly states that rules 10, 11, 12, 13 and 14 apply
mutatis
mutandis
to
all applications. Rule 23 is not one of them.
It is true that in
motion proceedings the affidavits constitute both the pleadings and
the evidence. But that is why in such proceedings
the respondent is
called upon not only to plead to the claim as set out in the
founding affidavits and the notice of motion,
but also to place
before the court its evidence.
5
In
Randfontein
,
6
Greenberg
J (as he then was) said that in applications, a court would not
countenance a procedure which would enable a respondent
to delay the
case and get a postponement by raising unsuccessful preliminary
points. Likewise, this Court has held that generally,
to grant the
respondent a postponement in order to deliver an answering affidavit
after a preliminary point has been taken, would
give rise to an
undue protraction of the proceedings and result in a piecemeal
handling of the matter, which is contrary to the
very concept of the
application procedure.
7
For these reasons,
I have come to the conclusion that rule 23(1) does not apply to
applications and that the notice is bad in
law.
Apart from this, in
my view the respondents’ substantive complaints are without
merit. The notice states that a “
judgment
” or
order is a “
decision
” which generally has three
attributes: (1) the decision must be final in effect and not
susceptible of alteration by a
court of first instance; (2) it must
be definitive of the rights of the parties; and (3) it must have the
effect of disposing
of a substantial part of the relief claimed. The
notice of motion and founding affidavit, the notice goes on to
state, do not
exhibit the attributes of a decision. Seemingly for
this reason,the notice statesthatthere is no basis upon which the
applicant
can claim an order that judgment be granted in its favour.
The respondents are
however mistaken and their reliance on
Zweni
,
8
is
misplaced. What plainly is sought in paragraph 1 of the notice of
motion is an order that the respondents pay the applicant
the sum
stipulated. Whether that order is styled as the grant of judgment
against the respondents in that amount, or an order
directing the
respondents to pay that amount, its effect is the same. No preceding
order or “
judicial
pronouncement
”
is
required for the relief sought in prayer 1 of the notice of motion,
as suggested in the notice.
Zweni’s
case deals with one
of the jurisdictional requirements for leave to appeal from a High
Court sitting as a court of first instance,
namely that only a
“
judgment
or order
”
within
the meaning of that term in section 20(1) of the Supreme Court Act
59 of 1959, is appealable.
9
It finds no
application in this case. The applicant’s claim is for payment
of the sum of R714 011.01 due by Castle
Crest, for which the
Trust is liable as surety and co-principal debtor. The founding
papers plainly disclose a cause of action
and for this reason, the
respondents’ contention that the notice of motion is vague and
embarrassing, has no merit.
What remains then
is whether the respondents should be given an opportunity to file
opposing affidavits. It was not suggested
by the applicant that the
respondents were
mala fide
or that they resorted to delaying
tactics in filing the notice. Although there is no explanation for
their failure to file affidavits
on the merits, I think that they
should be given an opportunity to put their case before the
Court.Furthermore, the applicant
has not claimed that it would be
prejudiced by the late filing ofanswering affidavits.
In the result, the
following order is issued:
The respondents’
exception is dismissed with costs.
The respondents are
directed to file their answering affidavits, if any, on or before
Wednesday 15 May 2013.
SCHIPPERS J
Judgment
:
Schippers J
Counsel
for the Applicant
:
Adv. RG Patrick
Cape
Bar
Instructing
Attorneys
: Cluver Markotter Inc
Cluver
Markotter Building, Mill Street
Stellenbosch
Ref
P Hill
Counsel
for Respondent
: Adv C Tsegarie
Cape
Bar
Instructing
Attorneys
: Brink & Thomas Inc.
2
nd
Fl, Equity House, St Georges Mall
Cape
Town
Ref:
J Thomas
Dates
of hearing
: 16 April 2013
Date
of judgment
: 23 April 2013
1
Saunders
Valve Co Ltd v Insamcor (Pty) Ltd
1985(1) 146 (T) at 149C,
affirmed in Transnet Ltd v Rubenstein
2006(1) SA 591(SCA)
para 28.
2
Randfontein
Extension Ltd v South Randfontein Mines Ltd and Others
1936 WLD
1
at 4-5.
3
Rule
6(5)(d)(ii).
4
Rule
6(5)(d)(iii).
5
Saunders
n 1 at 149F.
6
Note
2 at 5.
7
Bader
and Another v Weston and Another
1967 (1) SA 134
(C) at
136H-137A.
8
Zweni
v Minister of Law and Order
v 1993(1) SA 523(A).
9
Zweni
n 8 at 531B-D.