Van Der Merwe v Odendaal

• Jurisdiction: South Africa
• Judge: HF Brauckmann AJ
• Judgment Date: 02 July 2020
• Docket Number: 4712/18
• Hearing Date: 02 July 2020
• Citation: 2020 JDR 1297 (MN)

Brauckmann AJ:

INTRODUCTION:

[1]

This is an application by the applicant for the following relief:

[1.1]

condonation for the late launching of this application in terms of Rule 30 (2) and (3) of the Uniform rules of the High Courts ("The Rules");

[1.2]

declaring the respondent's summons and particulars of claim to be materially defective, and accordingly an irregular step in the proceedings;

[1.3]

setting aside the respondent's summons and particulars of claim; and

[1.4]

that the respondent be ordered to pay the costs of the application.

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[2]

The respondent opposes the application and counter applies for condonation for her non-compliance with Rule 18 (1) [1] in return. She also asks the Court to dismiss the applicant's application, and order the applicant to pay her costs.

BACKGROUND:

[3]

The respondent issued a summons against the applicant for the recovery of damages allegedly suffered when the respondent's dog attacked and bit her, causing severe injuries, resulting in hospitalisation. The respondent claims that during the attack a portion of her nose was severed and she suffered lacerations to her face. She claims damages under different heads totalling R 600 000.00 and costs.

[4]

The applicant was insured against risk (the attack described in the particulars of claim) and is represented by his insurer in terms of the principle of subrogation. The applicant entered appearance to defend on 24 January 2020, after having the summons was served on him on 01 January 2020. I pause to mention that respondent

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previously caused summons to be issued out of the North Gauteng Division of the High Court, but was met with a special plea of jurisdiction, and apparently an exception by the applicant's attorneys. The action in that division was withdrawn and issued out of this Court during December 2019. According to the respondent's particulars of claim the incident that gave rise to this action occurred on 09 January 2016 in eMalahleni, Mpumalanga.

APPLICANT'S APPLICATION

[5]

First of all the applicant seeks, if applicable, condonation for his own non-compliance with this Court's rules. Rule 30 and the relevant sub sections thereof reads:

"(1) a party to a cause in which an irregular step has been taken by any other party may apply to court to set it aside.

(2) An application in terms of sub rule (1) shall be on notice to all parties specifying particulars of the irregularity or impropriety alleged, and may be made only if —

(a) The applicant has not himself taken a further step in the cause with knowledge of the irregularity;

(b) The applicant has, within ten days of becoming aware of the step, by written notice afforded his

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opponent an opportunity of removing the cause of complaint within ten days;

(c) The application is delivered within fifteen days after the expiry of the second period mentioned in paragraph (b) of sub rule (2)." [Own emphasis]

[6]

It should be kept in mind that the applicant's attorneys have already received a previous summons in this matter in the North Gauteng Court, and raised technical defences there. The current summons was served on the applicant, according to the respondent's opposing affidavit, on 01 January 2019. Applicant served and filed his notice in terms of Rule 30 (20 (b) of "ACT 59 of 1959 AS AMENDED" (sic) on respondent's attorneys on 24 January 2019, affording her 10 days to remedy his complaint which he described as:

"1.1

The Summons and Particulars of claim (Combined Summons) is defective to the extent that the pleading has not been signed by an Advocate or Attorney with Right of appearance in the High Court, alternatively, the pleading does not reflect the allegation of fact that the Attorney who signed the pleading has right of appearance to do so.

1.2

Rule 18(1) of Act 59 of 1959 as amended specifically provides that and prescribes that "A combined summons, and every other pleading

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except a summons, shall be signed by both an advocate and an attorney or, in the case of an attorney who, under section 4(2) of the Right of Appearance in Courts Act, 1995 (Act 62 of 1995), has the right of appearance in the Supreme Court, only by such attorney or, …"

1.3

The Combined Summons in casu is signed by an attorney only and reference to the right of appearance referred to in section 4(2) of the Right of Appearance in Courts Act, 1995 (Act 62 of 1995), is omitted.

1.4

The Defendant submits that the Combined Summons is materially defective and irregular. [2] "

[7]

The respondent attempted to amend her particulars of claim in terms of Rule 28 (1) of the Rules, but after having received an objection to the proposed amendment from applicant's attorneys on 20 February 2019 she abandoned the amendment and also did not launch an application for an amendment of her summons. She filed so-called "re-issue" particulars of claim, duly signed by Adv S Strauss on 21 October 2019. It is for respondent's failure to comply with Rule 18 (1), and the application of the proper signatures to the particulars of claim that respondent seeks condonation from the court. In the meantime the applicant's attorneys sat idle and did not bring the application in terms of Rule 30 (2) (3) until 04

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September 2019.That is eight months later. The applicant's attorneys now seeks condonation from the Court for their non- compliance with Rule 30 (2) (3). The application was supposed to have been launched within 15 days after the second period mentioned in paragraph (b) of sub rule (2) expired. The explanation provided for the lapse of almost eight months instead of the 15 days as per the Rule falls far short of the requirements therefor.

[8]

The applicant's attorney, who wisely deposed to the founding affidavit, states the following with regards to the condonation and late launching of the application:

12.

"In the event that the above Honourable Court is of the view that the Application was to be brought within 10 days of Respondent failing to formally apply for amendment of the Summons and Particulars of claim, the Application is brought out of time.

13.

I submit that the delay in enrolling the application originates from the Applicant providing the Respondent with time to investigate remedies and act thereon. I submit that Respondent was not prejudiced with the extra time to seek an

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appropriate remedy and accordingly humbly request condonation for the late filing of this application." [3]

The applicant's attorney's statement in paragraph 12 of the founding affidavit is to say the least, startling. Not only was the application filed late, but also it was filed almost eight months out of time.

[9]

I have noted that both the applicant's attorney and the respondent's attorney (who also deposed to the founding-, opposing -and replying affidavits in this application) still refers to Act 59 of 1995 in the notices and affidavits. I wonder whether they are really not aware that the said act have long since been repealed and replaced with the Superior Courts Act [4] in 2013 already, or whether they made use of precedents when drafting the affidavits and notices. Whichever it may be, it is advisable that they should attend some workshop on High Court Practice and Procedures and update their precedents. Failing to do so might cause them or their clients to rake up punitive cost awards in future. Fortunately for the practitioners involved it appears as if they were still using the same version of the Uniform rules. Not only is the reference to the Act incorrect, but applicant's attorney even has the relevant period for filing this application as 10 days and not 15 days as per the rule. Not

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even the longer period in the rules saves her from some embarrassment.

NON-COMPLIANCE AND CONDONATION –: RULE 27/THE LAW

[10]

Whenever a party to litigation fails to comply with any of the Rules, or time-periods contained in such Rules, the Court may condone such failure on application to Court by the party that defaulted [5] . Condonation is not for the mere taking thereof. In Du Plooy v Anwes Motors (Edms) Bpk [6] the Court concluded that the sub rule (Rule 27 (3)) requires 'good cause' to be shown. The court has a wide discretion [7] which must be exercised with regard also to the merits of the matter seen as a whole. This applies to all applications which may be brought under the sub rule [8] . What does differ is the quantum of the assurance required to the effect that there is indeed a defence, which may vary from case to case. The applicant should satisfy the court on oath that he has a bona fide defence or that his action is clearly not ill-founded, as the case may be. Regarding this requirement it has been held that the minimum

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that the applicant must show is that his defence is not patently unfounded and that it is based upon facts (which must be set out in outline) which, if proved, would constitute a defence/cause of action [9] . The most important consideration however, as laid down by the Constitutional Court, is whether it is in the interest of justice to grant such condonation and lateness is not the only consideration. The Applicant's prospects of success and the importance of the issues to be determined are also relevant factors [10]

[11]

Where there is a proceeding or step, albeit an irregular or improper one, it is capable of being condoned regardless of whether the rule which has not been complied with is directory or mandatory and whether there has been substantial compliance or not. The sub rule empowers the court to condone 'any non-compliance' with the rules, and the use of the word 'any' emphasizes the absence of any...