Rabie v De Wit

• Jurisdiction: South Africa
• Judge: Griesel J and Nyman AJ
• Judgment Date: 26 February 2013
• Citation: 2013 (5) SA 219 (WCC)
• Docket Number: A 320/12
• Hearing Date: 22 February 2013
• Counsel: L Zaseraj for the appellant.
• Court: Western Cape High Court, Cape Town

Griesel J and Nyman AJ:

[1] This is an appeal against an order granted in the Bellville Magistrates' E Court whereby the magistrate dismissed with costs an application brought by the appellant in terms of rule 60A of the Magistrates' Courts Rules.

[2] It arose from an action instituted in the court a quo by the present F respondent (as plaintiff) against the appellant (as defendant) for repayment of a monetary claim based on an acknowledgment of debt concluded between the parties. (For convenience the parties are referred to as they were in the court a quo.)

Procedural history G

[3] On 23 August 2011 the plaintiff issued a combined summons, accompanied by a document headed 'Annexure A — Particulars of Claim'. Six further schedules were attached to the particulars of claim, including the written acknowledgment of debt (skuldbewys) on which H the claim is based, as well as voluminous schedules showing how the three individual amounts comprising the claim had been calculated. These latter schedules occupy more than 90 pages of the record, which is an aspect to which I shall return later in this judgment.

[4] After service of the summons on him, the defendant gave notice of I his intention to defend the action. He subsequently delivered a notice in terms of rule 60A(2)(b) (followed by an amended notice spelling out the grounds of complaint in more detail) in which he complained that the summons and particulars of claim did not comply with the provisions of various rules in the following respects:

(a)

A The summons does not comply 'in all respects' with Form 2B,

Griesel J and Nyman AJ

contrary to the provisions of rule 1(4)(a). [1] The complaint in this A regard appears to be that although a combined summons was issued, the form of summons corresponds with form 2, and not form 2B as required.

(b)

The particulars of claim are defective because they do not contain a heading and case number, contrary to the provisions of rule 6(2). B

(c)

The particulars of claim are further defective because they do not contain 'a clear and concise statement of the material facts upon which the pleader relies for his or her claim', contrary to the provisions of rule 6(4). The defendant's complaint in this regard was aimed at the voluminous schedules referred to above, the defect C being that 'weens geen en of swak nommering [of the annexures to the particulars of claim] is verweerder nie in staat om op genoemde aanhangsels te antwoord of te onderskei nie, meer spesifiek die bewering aangaande die uiteensetting van die onderskeie eise'.

(d)

A further complaint based on alleged non-compliance with rule 5(7), read with the High Court Practice Notes relating to claims D under the National Credit Act 34 of 2005, was abandoned by the defendant's attorney in the course of the argument before the magistrate and does not require further attention.

[5] The plaintiff was afforded a period of 10 days to remedy the alleged 'irregular steps'. When he failed to do so, the defendant delivered a E substantive application seeking dismissal of the plaintiff's action with costs; alternatively, that the combined summons be set aside as an irregular step, accompanied by an order for costs.

[6] In an opposing affidavit delivered on behalf of the plaintiff, his attorney took issue with the defendant's complaints, describing them as F 'pedanties' and accusing the defendant and his legal representatives of delaying tactics and 'kwelsugtige litigasie', well knowing that the plaintiff at that stage (January 2012) was in the terminal stages of a form of lymphoma, as borne out by a letter from an oncologist, attached to the affidavit. G

[7] The answer to these allegations, as contained in the defendant's replying affidavit, can only be described as cynical and callous in the extreme: apart from denying the allegation of pedantry, the defendant challenged the plaintiff and his legal representative 'om die sogenaamde terminale fase van die respondent [plaintiff] te bewys en die relevansie H wat so 'n terminale fase op regspleging het'. (It is common cause that the plaintiff has in the interim succumbed to his illness and has not yet been replaced in this litigation by his executor.)

[8] After hearing argument, the magistrate took the view that the alleged irregularities complained of by the defendant could either be overlooked I

Griesel J and Nyman AJ

A or clarified in the course of litigation, because they did not result in any substantial prejudice to the defendant. He accordingly dismissed...