Federated Trust Ltd v Botha

• Jurisdiction: South Africa
• Judge: Jansen JA, Corbett JA, Hofmeyr JA, Klopper AJA and Van Winsen AJA
• Judgment Date: 25 May 1978
• Citation: 1978 (3) SA 645 (A)
• Hearing Date: 23 March 1978
• Court: Appellate Division

Van Winsen AJA:

This matter arises out of an action instituted by appellant (plaintiff in the court of first instance) against respondent (defendant in that court) in the magistrate's court, Kroonstad. The summons was issued on 21 November 1974. After a protracted period, accounted for by numerous interlocutory proceedings relative to the furnishing of particulars and amendments to the plea, the matter was set down for hearing on 17 November 1975. At that late stage appellant's attorney, who had then only recently come into the case, applied for leave to amend the

Van Winsen AJA

claim. This application was granted subject to respondent's right to except to the claim or to apply for further particulars before pleading and to appellant paying the wasted costs on the attorney and client scale. A Thereafter, on 28 November 1975, respondent applied for further particulars to the amended claim. On 3 March 1976 respondent gave notice that on 10 March he would apply for an order compelling appellant to afford such particulars within seven days. The notice of this application bears an endorsement to the effect that a copy thereof was received by B appellant's attorney on 5 March 1976. The application was granted on 10 March. An application for an order dismissing the claim by reason of appellant's failure to comply with the order of 10 March was granted on 23 March but subsequently rescinded on 24 that month. On 25 March notice was given renewing the application for dismissal on the same grounds as C before. This application was set down for hearing on 31 March 1976. Two days previous to that date appellant supplied particulars of its amended claim. After hearing the attorneys for the respective parties in regard to the application for dismissal the magistrate on 31 March dismissed appellant's claim with costs. An appeal to the Orange Free State Provincial Division against this decision was unsuccessful. With the leave D of that Court the matter comes on appeal against the decision upholding the magistrate's order of dismissal.

Mr Friedman, who appeared on behalf of appellant in this Court, in initio, raised a ground of appeal based upon what he contended to be the invalidity of the notice, dated 3 March 1976. of the application to compel E appellant to afford the particulars sought in a request for further particulars dated 28 November 1975. He pointed out that the notice appeared to have been served on 5 March which was a Friday. Discounting the Saturday and Sunday following as not being court days, it meant that, as the application was to be made on 10 March, only two clear days ie 6 and 7 March, had been allowed in respondent's notice. He referred the F Court to Rule 9 (14) of the magistrates' courts Rules which provides that,

"except where otherwise provided notice of any application to the court shall be served... at least three days before the day appointed for the hearing of the application..."

This means, so he contended, that three clear days must be allowed between G the date of service and that of appearance. This period not having been allowed the notice of 3 March was a nullity and the magistrate, purporting to have dismissed appellant's claim by reason of its failure to comply with an order which was given on 10 March in pursuance of a notice which was a nullity, thereby committed an irregularity. Accordingly this Court H could, on that ground alone, set aside the magistrate's order dismissing the appellant's claim.

Appellant's counsel was constrained to admit that neither the magistrate nor the Court a quo on appeal had been seized of the question of deciding upon the validity of the notice of 3 March. In fact this issue was raised for the first time when appellant's counsel argued the application for leave to appeal from the decision of the Court a quo and the latter Court ruled that it was not possible for it to grant leave to appeal on a point which had never been raised before it.

Van Winsen AJA

Assuming - but not deciding - that the computation of the days required under Rule of court 9 (14) as the period of notice to be given in respect of an application is as contended for by counsel, it nevertheless seems to me that it is too late to raise the matter at this stage in the A proceedings. Had this matter been raised at the appropriate time a wide discretion would have been available to the magistrate in dealing therewith. Rule of court 60 (6) provides:

"Where there has been short service, without leave, of any notice of set-down or notice of any application or of process of the court the court may, instead of dismissing such notice or process adjourn the proceedings for a period equivalent at the least, to the period of proper notice upon B such terms as to costs as may be just. If the proceedings be adjourned in the absence of the party who received short notice, due notice of the adjournment must be given to such party by the party responsible for the short notice."

It is thus evident that a notice which is inadequate by reason of its failure to afford the requisite number of days before appearance in court C in pursuance of such notice is not on that ground alone to be treated as a nullity. The defect can be cured subject to terms safeguarding the injured party against prejudice. Indeed had the parties overtly or tacitly agreed to treat the notice as valid it would have been competent for the magistrate to proceed with the hearing of the application as though the D notice were valid. Had the injured party been aware at the time of the appearance in court that his opponent had given short notice but had nevertheless decided to take no steps to have the notice set aside or corrected it is inconceivable that...