Marley Floor Tile Co (SA) (Pty) Ltd v Geldenhuys

• Jurisdiction: South Africa
• Judge: Jacobs J
• Judgment Date: 02 March 1967
• Citation: 1967 (3) SA 585 (GW)
• Hearing Date: 23 February 1967
• Court: Griqualand-West Local Division

Jacobs, J.:

On 13th July, 1966. plaintiff issued summons against defendant for an amount of R17,585.48 for goods sold and delivered. The summons was served on 14th July and on 15th July appearance to defend H was entered on behalf of defendant. On 26th July, 1966, plaintiff lodged an application for summary judgment, alleging that appearance had been entered simply for the purpose of delay. This was opposed by defendant on grounds which I need not set out but which were apparently sufficient to warn plaintiff that its application might not succeed because the application was not proceeded with and, on 20th October, a consent by defendant was filed for plaintiff to proceed with the main action and for costs of the application for summary judgment

Jacobs J

to be costs in the cause. Plaintiff's declaration was filed on 7th December, 1966, and there the matter rested until 7th February, 1967, when a notice in terms of Rule 26 was served upon defendant requiring him to deliver his plea within three days. A day or two later A defendant's attorney phoned plaintiff's attorneys to enquire whether they would be prepared to accept a request for further particulars despite the fact that the time allowed for such a request by Rule 21 (1) had expired. He was told that such a request would not be accepted and, if filed, would be ignored. Despite this a request for particulars was B in fact served upon plaintiff's attorneys and filed with the Registrar on 10th February. Plaintiff's attorneys explain that the request was delivered to and accepted by the receptionst in their front office and state that, when it was handed to the partner handling the matter, he immediately wrote to defendant's attorney telling him that the request would be ignored and that, unless a plea was filed, a notice C of bar would be served on him on 13th February, 1967, and default judgment applied for. On the 13th a notice of bar was in fact served and on 20th February the matter was placed on the roll for hearing on the 23rd. A copy of the notice of set down was served upon defendant's attorney. On the following day a notice was served upon plaintiff's D attorneys informing them that defendant intended opposing the application for judgment by default. With the notice an affidavit by defendant's attorney was filed in which he set out the history of the matter and took up the attitude that, notwithstanding the time stipulation in Rule 21 and plaintiff's notice demanding his plea, defendant was still entitled to ask for particulars and that plaintiff cannot simply ignore such a request

E Mr. Steenkamp, who appeared on behalf of the defendant to oppose the granting of judgment by default, made the following points:

(a)

Before the Uniform Rules of Court came into force a defendant...