Prism Payment Technologies (Pty) Ltd v Altech Information Technologies (Pty) Ltd (t/a Altech Card Solutions) and Others

• Jurisdiction: South Africa
• Judge: Lamont J
• Judgment Date: 07 June 2011
• Citation: 2012 (5) SA 267 (GSJ)
• Docket Number: 2010/38713
• Hearing Date: 26 May 2011
• Counsel: DC Fisher SC for the plaintiff. JR Peter SC for the fourth defendant.
• Court: South Gauteng High Court, Johannesburg

Lamont J:

G [1] The fourth defendant in this matter has brought an application against the plaintiff in terms of rule 30(1) of the Uniform Rules of Court to set aside the service of a summons. The plaintiff, albeit informally, counterclaims conditionally for condonation for non-compliance with the rules to the extent that the rules are found not to have been complied with.

H [2] On 28 September 2010 the plaintiff instituted action against four defendants, claiming payment, as against such defendants which were held liable, of some R56,6 million and other relief. The sheriff rendered returns reflecting that on 29 September 2010 and at Linbro Business I Park, 11 Enterprise Close, Sandton (the service address), he had served the summons and that such place was the employment address of the fourth defendant; that on 5 January 2011 and at the service address he had served a letter on the fourth defendant; that on 5 January 2011 and at the service address he had served a copy of the summons and particulars of claim; that on 29 September 2010 at the service address he J had served a copy of the summons and particulars of claim.

Lamont J

[3] Each defendant individually delivered a notice of intention to defend. A The notice of intention to defend for the fourth defendant was delivered on 12 October 2010.

[4] The irregularity of which the fourth defendant complains is that the service address is not his employment address and hence — ignoring other deficiencies in the returns of service — the service of the summons B was irregular.

[5] In terms of rule 4(1)(a)(iii) of the rules service is to be effected by the sheriff leaving a copy of the process at the place of employment of the defendant.

[6] Rule 30 affords a party to a cause, in which an irregular step has been C taken by any other party, the right to apply to court to set it aside.

[7] The rule applies to assist a party, provided that the party:

(a)

Has not taken a further step in the cause (the filing of an appearance to defend does not constitute a further step);

(b)

within 10 days of becoming aware of the step, by written notice it D has afforded the other party an opportunity to remove the cause of complaint; and

(c)

within 15 days after the expiry of the 10 days, shall prosecute the claim by way of delivery of the application.

The fourth defendant was late and seeks condonation. I am of the view E that condonation should be allowed because there is no prejudice to the plaintiff. The fourth defendant could as well have raised the complaint currently raised by way of a special plea; hence the fact that he is late in the current context does not afford any prejudice to the plaintiff.

[8] The court at the hearing (in terms of rule 30(3) of the rules) is F granted the power to set aside the step in whole or in part if it is irregular or improper and to grant leave to amend or to make such other order as to it seems appropriate.

[9] The fourth defendant brought the application by way of notice. No affidavit was attached to the notice. Inside the notice the fourth G defendant alleged that the summons was not served as prescribed by rule 4 in that the place of employment of the fourth defendant is not at the service address.

[10] The plaintiff's evidence was that the fourth defendant had resigned from the plaintiff's employ during or about October 2007 and had then H taken up employment with either the first, alternatively the second, alternatively the third defendant, after he had successfully facilitated the transfer of certain business to the new employer.

[11] The plaintiff set out that a similar summons to that forming the subject-matter of the present matter was served on...