Advanced Idea Mechanics (Pty) Ltd v Tiffany's Confectionery (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 1985 (4) SA 444 (W)

Advanced Idea Mechanics (Pty) Ltd v Tiffany's Confectionery (Pty) Ltd
1985 (4) SA 444 (W)

1985 (4) SA p444

Citation	1985 (4) SA 444 (W)
Court	Witwatersrand Local Division
Judge	Margo J
Heard	August 10, 1984
Judgment	December 11, 1984

Flynote : Sleutelwoorde B

Practice — Request for further particulars — Such delivered out of time prescribed by Rule of Court 21 (1) — As such request is not a pleading, notice of bar requiring the filing of such a request not required — Rule 26 does not C extend the period of 14 Court days prescribed by Rule 21 (1) — A notice of intention to amend a simple summons does not alter the times prescribed by Rules 21 (1), 22 (1) and 26.

Headnote : Kopnota

As a request for further particulars is not a pleading in terms of the Uniform Rules of Court, it is not necessary for a plaintiff to serve a notice of bar, in terms of Rule 26, on a D defendant, who has not filed a request for further particulars within the time prescribed in Rule 21 (1), requiring him to request further particulars to the plaintiff's particulars of claim. Accordingly, Rule 26 does not extend the period of 14 Court days prescribed by Rule 21 (1).

Ex parte Vally: In re Bhoolay v Netherlands Insurance Co of SA Ltd and Another 1972 (1) SA 184 (W) approved and applied.

Shatterprufe Safety Glass Co (Pty) Ltd v Northern Hardware & E Glass (Pty) Ltd and Others 1983 (4) SA 26 (T) approved and applied.

In the ordinary course, a mere notice of intention to amend a simple summons does not by itself alter the times prescribed by Rules 21 (1), 22 (1) and 26.

Case Information

Application for an order declaring a request for further particulars to be an irregular proceeding. The facts appear F from the reasons for judgment.

G B Perl for the applicant (plaintiff).

G I Hoffman for the respondent (defendant).

Cur adv vult.

Postea (December 11). G

Judgment

Margo J:

This is an application under Rule 30 (1) to set aside as an irregular proceeding the defendant's request for further H particulars to the plaintiff's declaration on the ground that the request was served too late.

The summons (a simple summons in terms of Form 9 in the First Schedule to the Uniform Rules of Court) was served on 30 April 1984. Notice to defend was delivered on 2 May 1984. The declaration was delivered on 29 June 1984, together with a notice of intention to amend the summons. The request for I further particulars to the declaration was delivered by registered post on 23 July 1984, that is some four days after expiry of the 14 Court days allowed by Rule 21 (1).

Mr Hoffman, for the defendant, has raised two points in answer to the application. The first point is based on the submission that a request for further particulars to a plaintiff's particulars of claim can be delivered at any time prior to J expiry of the time allowed to plead. Thus, counsel argued, such a request may even be delivered after a notice of bar

1985 (4) SA p445

Margo J

requiring the defendant to plead. In support of this A proposition counsel cited two cases, namely Wolff (Pty) Ltd v Swisacor (Pty) Ltd 1955 (1) SA 604 (T) at 606D - H and Tyulu and Others v Southern Insurance Association Ltd 1974 (3) SA 726 (E) at 728H - 729C.

The first of these cases reflects the practice before the introduction of the Uniform Rules of Court on 15 January 1965, B namely that, while a defendant remained entitled to plead, he was entitled to request particulars to the plaintiff's declaration, and therefore that a defendant could deliver such a request at any time before being barred from filing his plea. See the Wolff case supra, per PRICE J, loc cit; see also White v Moffett Building and Contracting (Pty) Ltd 1952 (3) SA 307...