Shatterprufe Safety Glass Co (Pty) Ltd v Northern Hardware & Glass (Pty) Ltd and Others

• Judge: Van der Walt J
• Judgment Date: 13 May 1983
• Hearing Date: 11 May 1983
• Court: Transvaal Provincial Division

Van der Walt J:

In this action summons with particulars of claim annexed thereto was issued and served upon defendants. Notice of appearance to defend was given on 13 December 1982.

Van der Walt J

On 10 January 1983 and in terms of Rule 21, defendants served a request for further particulars to plaintiff's particulars of claim. Plaintiff did not reply to the request for particulars and on 14 February 1983 served a notice of bar on defendants' attorney calling on defendants to lodge their pleas within A three days.

Defendants have now applied on notice of motion for the notice of bar to be set aside and to compel plaintiff to reply to the request for particulars. Alternatively, should the Court find that the request for particulars was served out of time, that B the Court condone the late request and remove the bar.

This application has brought to the fore once again the question whether a request for particulars in terms of Rule 21 and the reply thereto, is a pleading or not. The request for particulars should have been delivered within 14 Court days of the notice to defend on 13 December 1982 in terms of Rule 21 C (1). However, if the request for particulars is a pleading then the provisions of Rule 26 apply and more specifically the proviso to that rule which states:

"Provided that for the purposes of the Rule the days between 16 December and 15 January both inclusive shall not be counted in the time allowed for the delivery of any pleading."

Should the request for particulars be a pleading then its D delivery on 10 January would have been in time and the plaintiff could not have ignored that request. Should, however, the request for particulars not be a pleading, then the proviso to Rule 26 would not apply and the 14-day time limit would have expired on 3 January 1983 and plaintiff would have been E entitled to ignore the invalid request delivered on 10 January 1983, as it in fact did, and to deliver and serve the notice of bar. Costa v Van Zyl and Another 1957 (4) SA 156 (T); Marley Floor Tile Co (SA) (Pty) Ltd v Geldenhuys 1967 (3) SA 585 (GW) at 586H - 588C; Swart v Flugel 1978 (3) SA 265 (E) at 266C - H.

The nature of a request for particulars in Rule 21 (1) is dealt F with in Rule 21 (2) (a) and (b):

"(a)

Particulars so required shall... together with the reply thereto form part of the pleadings.

(b)

The request for further particulars and the reply thereto shall, save where the party is litigating...