Manufacturing, Engineering and Related Services Sector Education & Training Authority v Mhlaba

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Noko J
• Judgment Date: 18 September 2023
• Citation: 2023 JDR 3516 (GJ)
• Hearing Date: 06 September 2023
• Docket Number: 033076/2022
• Court: Gauteng Local Division, Johannesburg

Noko J:

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Noko J

Introduction and Background

[1]

The plaintiff issued summons against the defendant for 1 billion rand in respect of the money lost as a result of irregularities allegedly committed by the defendant during his tenure as an employee of the plaintiff. The defendant entered appearance to defend but failed to serve his plea timeously and was therefore served with the notice of bar. In turn the defendant served notice of exception to which the plaintiff retorted that it was irregular as the defendant was ipso facto barred. The defendant on the other hand contends that notice of exception was served timeously. Though the application serving before me is for the exception the plaintiff invited the court to consider whether the defendant is not barred.

[2]

In this judgment the applicant and respondent will be referred to as defendant and plaintiff respectively.

Truncated sequence/ chronology of events

[3]

To put the process in context the following summary of the sequence of exchanges of pleadings and notices between the parties is instructive, viz.

2.1. 13 October 2022	service of summons on the defendant by sheriff.
2.2. 27 October 2022	service of notice of intention to defend by Petker and Associates Inc., (Petker Inc.).
2.3. 5 December 2022	service of plaintiff’s notice of bar by email.
2.4. 6 December 2022	service of plaintiff’s notice of bar by hand.
2.5. 7 December 2022	Notice of withdrawal served by email from Petker Inc.
2.6. 7 December 2022	email from Petker Inc. to Ratshibvumo attorneys

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	Inc. [1] (Ratshibvumo Inc.) enclosing notice of bar.
2.7. 8 December 2022	email from plaintiff’s attorneys to the defendant.
2.8. 13 December 2022	service of notice of appointment of Ratshibvumo Inc. as attorneys of record for the defendant.
2.9. 13 December 2022	service of notice of exception by email sent at 16:36.
2.10. 14 December 2022	service of defendant’s notice of exception by hand.
2.11. 14 December 2022	service of plaintiff’s notice in terms of rule 30 of the Uniform Rules of Court [2].

Issues for determination

[4]

Issues for determination are whether:

4.1.

the defendant is ipso facto barred,

4.2.

the abandoning of the rule 30 notice has the effect of uplifting the bar and

4.3.

the defendant has persuaded me that the particulars of claim are excipiable.

Parties’ contentions and submissions

[5]

The plaintiff’s counsel commenced by stating that both counsels have agreed that the plaintiff’s counsel should address the court first to bring to the court’s attention a certain issue. Prior plaintiff’s counsel could continue addressing the court counsel for the defendant’s counsel interjected and contended that the plaintiff’s counsel intends to address the court regarding the notice in terms of rule 30 which was served after the

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defendant’s notice of exception was served. The said rule 30 notice was not followed up to finality and was in fact abandoned.

[6]

According to the information at the defendant’s disposal, so proceeded defendant’s counsel, the defendant’s erstwhile attorneys forwarded a notice of bar to the current defendant’s attorneys of record by email on 7 December 2022 and indicated that it was served on them on 6 December 2022. Thereafter a notice of exception was served on 13 December 2022, which was on the fifth day after service of notice of bar by the plaintiff’s attorneys and was therefore served on time. Since the exception as contended by counsel, was served on time the defendant was therefore not under bar.

[7]

Counsel for the defendant further contended that in the premises the plaintiff should therefore not persist with the issue of the notice of bar. The court should proceed to adjudicate over the application for exception which is set down for hearing before me alternatively the plaintiff’s counsel should request a postponement to enable the plaintiff to proceed with the rule 30 application and further tender costs for the postponement. If the court was to hear arguments on the notice of bar, so went the argument, this would amount to an ambush, which cannot be countenanced by the court. In any event, the counsel continued, the plaintiff has served papers opposing the application for the exception and that should be considered as a further step as envisaged in rule 30(2)(a).

[8]

The defendant’s counsel further that the plaintiff’s submission that notice of bar was first served by email on the defendant’s erstwhile attorneys has not been brought to the attention of the defendant’s current attorneys. If the plaintiff is correct the dispute between the parties is only about one day. The persistence by the plaintiff to make arguments thereon is a delay for the matter to be finalised and this may not be what the

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plaintiff wanted and the adjudication of the application for exception would lead to finality.

[9]

The plaintiff on the other hand contended that the defendant was served with notice of bar and the defendant having failed to plead before the expiry of 5 days the defendant is ipso facto barred. The notice of bar was served on 5 December 2022 by email and hand delivered on 6 December 2022. Further that the defendant should not contend to be surprised or ambushed because, first, the plaintiff’s attorneys sent an email on 8 December 2022 [3] directly to the defendant after Petker and Associates withdrew as defendant’s attorneys, making him aware that notice of bar was served on his attorneys on 5 December 2023. In addition, plaintiff’s attorneys warned him of the implications of the notice to bar.

[10]

Secondly, the defendant’s attorneys were made aware on 14 December 2022 (some nine months ago) through notice in terms of rule 30 that the defendant was under bar. This was also mentioned in the plaintiff’s heads of argument dated 11 March 2023 [4] and was also mentioned in the defendant’s practice note dated 3 March 2023 [5] where it was stated that the defendant...