Firstrand Bank Ltd v Mayeza

• Jurisdiction: South Africa
• Judge: Greenland AJ
• Judgment Date: 14 May 2008
• Docket Number: 1427/06
• Court: Transkei Division
• Hearing Date: 09 May 2008
• Citation: 2008 JDR 0554 (Tk)

Greenland AJ:

Nature of the proceedings

[1] By summons served on 04 January 2007 Plaintiff sued Defendant for return of monies allegedly stolen whilst she was in the employ of Plaintiff. After entering appearance to defend, Defendant filed an exception (instead of filing a plea to the summons).

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Plaintiff now seeks an order setting aside Defendant's exception;

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Defendant seeks an order upholding the exception.

Sequence of Pleadings and Court hearings

[2] For the sake of clarity it is necessary to set out the sequence of pleadings served and court hearings with the latter in italics –

Summons	04 January 2007
Appearance to Defend	20 February 2007
Rule 23(1) Notice by Defendant	04 April 2007

2008 JDR 0554 p2

Greenland AJ

Notice of Bar by Plaintiff	08 June 2007
Exception by Defendant	31 August 2007
Notice of Set Down of Exception by Defendant	31 August 2007
(Removed from roll and costs reserved	06 September 2007
Rule 30 Application by Plaintiff	02 October 2007
Notice of Set Down of Exception by Defendant	07 September 2007
(Postponed sine die. Costs reserved)	11 October 2007
Exception and Rule 30 Application
(Adjourned sine die and ordered to be heard simultaneously)	02 November 2007

Rule 23 (1) Notice

[3] As can be seen Defendant served a Rule 23 (1) Notice on the Plaintiff on 04 April. Therein she drew attention to alleged defects in the particulars of claim and gave Plaintiff (fifteen) 15 days to remedy the situation or face an exception.

In view of the fact that Plaintiff did not remove the cause for complaint Defendant was entitled to proceed with the exception. However the (fifteen) 15 days elapsed with no follow up action on her part until 31 August when she filed her exception.

Notice of Bar

[4] Instead of attending to the terms of the Rule 23 (1) Notice Plaintiff served Defendant with a Notice of Bar. This means that the Plaintiff must be taken to have been of the view, which view it was perfectly entitled to adopt, that its summons and particulars would survive any exception. Also it was entitled to ask the Defendant to get on with her exception.

a) So it filed a Notice of Bar, the exact form and content of which was as follows-

"TAKE NOTICE THAT PLAINTIFF hereby requires DEFENDANT to deliver his plea within (five) 5 days after the day upon which this notice is received.

2008 JDR 0554 p3

Greenland AJ

AND FURTHER TAKE NOTICE THAT if the DEFENDANT fails to deliver his plea within the time period as aforesaid shall be in default of filing his plea and ipso facto from pleading."

b) This Notice of Bar was in terms of Rule 26 which requires that, as regards a pleading that is not a replication or subsequent pleading, a party is barred if he/she fails to deliver a pleading specified in a notice of...