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

• Jurisdiction: South Africa
• Citation: 1983 (4) SA 26 (T)

Shatterprufe Safety Glass Co (Pty) Ltd v Northern Hardware & Glass (Pty) Ltd and Others
1983 (4) SA 26 (T)

1983 (4) SA p26

Citation	1983 (4) SA 26 (T)
Court	Transvaal Provincial Division
Judge	Van der Walt J
Heard	May 11, 1983
Judgment	May 13, 1983

Flynote : Sleutelwoorde

Practice — Pleadings — Further particulars — Request for and reply thereto not pleadings — Proviso to Rule 26 thus not applicable in calculating time allowed for delivery. Semble: Rule 26 should be amended to include a notice requesting particulars and reply thereto and possibly exceptions.

Practice — Pleadings — Time for delivery — Request for D particulars out of time — Satisfactory explanation therefor, and Rules not recklessly or intentionally disregarded — Late filing condoned and bar imposed by Rule 26 removed.

Headnote : Kopnota

Rule 26 is clear in its wording and applies only to pleadings. E It is equally clear that a notice requesting particulars and the reply thereto are not pleadings. It follows that the proviso to Rule 26 (in terms of which the period between 16 December and 15 January "shall not be counted in the time allowed for delivery of any pleading") does not apply to a notice requesting particulars or the reply thereto.

Semble: It may well be advisable that Rule 26 be amended to include a notice requesting particulars and the reply thereto and possibly also exceptions.

F Where defendants' notice requesting further particulars was delivered out of time, but it had not been submitted on behalf of plaintiff that defendants' defence was without foundation, and the Court was satisfied that defendants' delay was reasonable and that the Rules of Court had not been recklessly or intentionally disregarded by defendants, the late filing was condoned and the bar imposed in terms of Rule 26 was removed. G

Case Information

Application to set aside notice of bar and for an order directing respondent to furnish further particulars. The facts appear from the reasons for judgment.

C E Puckrin for the applicants.

G J Essey for the respondent.

Cur adv vult.

Postea (May 13).

Judgment

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.

1983 (4) SA p27

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...