Fourie NO. and Others v The Land and Agricultural Development Bank of South Africa

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Lawrence Lever J
• Judgment Date: 08 April 2022
• Court: Northern Cape Division
• Hearing Date: 14 May 2021
• Docket Number: 1425/2020; 1426/2020; 1427/2020; 1428/2020

Lever J:

1.

These four cases being case numbers 1425/ 2020, 1426/ 2020, 1427/ 2020 and 1428/ 2020 are dealt with in one judgment as both the respective applicants and the respondent agree that the issues in each matter are such that if one application goes one way the other 3, must of necessity, follow to the same conclusion.

2.

Although the applicants launched 4 distinct applications the respondent answered all 4 applications with one answering affidavit. In doing so, the respondent relied on the contention that in all four applications the same issues and questions would be dealt with in each application. The respective applicants then filed a single replying affidavit dealing with the answering affidavit. Confirming in form and in substance that both respective sides indeed shared the view that a decision in one of the matters will of necessity mean the same result in the other three.

3.

Furthermore, at the hearing of the matter both Mr Jankowitz for the respective applicants and Mr Tsangarakis for the respondent agreed that

2022 JDR 2043 p4

Lever J

if one application succeeded then all must succeed and if one application were to fail then of necessity, they must all fail.

4.

The present application is an interlocutory application under the provisions of Rule 30 of the Uniform Rules of Court (the Rule/s). The applicants' contention is that in the respective actions, the respondent has not complied with various provisions of Rule 18. The details of such omissions will be dealt with presently.

5.

The respective applicants were placed under Notice of Bar on the 22 October 2020 in the various actions relevant to this matter. The notice contemplated by Rule 30(2)(b) was filed on the 30 October 2020 in each of the 4 matters relevant hereto.

6.

In each of these Notices served and filed under the provisions of Rule 30(2)(b) it was alleged that in each of the relevant combined summonses commencing action, the following provisions of Rule 18 were not complied with: Firstly, failed to comply with Rule 18(1) in that the summons purported to have been signed by the attorney of the plaintiff in terms of s25( 3) of Act 28 of 2014 [1] ; Secondly, Rule 18(4) in that it was alleged that the Particulars of Claim did not set out a clear and concise statement of fact in order to establish a cession that is a key element of respondent's respective claims; and Finally, Rule 18(6)

2022 JDR 2043 p5

Lever J

in that the respondent did not attach a true copy of the written agreement by virtue of which respondent claims to have taken cession of the relevant claims.

7.

The respondent chose not to respond to the notice under the provisions of Rule 30(2)(b) and did not remove any of the alleged causes of complaint. By the time that the respective applicants filed their respective Notices of Motion in the respective applications, the objection under and in terms of Rule 18(4) had fallen away without any explanation and wa s not proceeded with.

8

Thus, in the present applications, the applicants only proceeded with the irregular proceedings in terms of Rule 30 in respect of the alleged failures in respect of Rule 18(1) and 18(6) as set out above.

9.

At the hearing of this matter, Mr Jankowitz who appeared for the applicants in all four of the abovementioned matters sought to deal with the applications as having been brought under and in terms of Rule 30A as opposed to Rule 30. This despite the fact that the Notice of Motion in each of the respective cases was brought under the provisions of Rule 30.

10.

Mr Tsangarakis, who appeared for the respondent in each of the four matters dealt with objected to this proposal on the basis that the respondent had been brought to court under the provisions of Rule 30 and had prepared for court on that basis. That the respondent in each

2022 JDR 2043 p6

Lever J

case would be unduly prejudiced if the applicant were to be allowed to deal with the matter as if it had been brought under the provisions of Rule 30A as opposed to Rule 30.

11.

In my view Mr Tsangarakis is correct the four matters were launched under Rule 30, and they shall proceed under the provisions of Rule 30. To do otherwise in these circumstances would prejudice the respondent as it had been brought to court under the provisions of Rule 30 and had prepared accordingly.

12.

The applicants' objections to the Particulars of Claim filed by the respondents in each matter fall under the provisions of Rule 18(1) and 18(6). The said rules read as follows:

"18(1)

A combined summons, and every other pleading except a summons, shall be signed by both an advocate and an attorney or, in the case of an attorney who, under section 4(2) of the Right of Appearance in Courts Act, 1995 (Act 62 of 1995), has the right of appearance in the Supreme Court, only by such attorney or, if a party...