White v Moffett Building and Contracting (Pty), Ltd

• Jurisdiction: South Africa
• Judge: Horwitz J, and Brink J
• Judgment Date: 10 April 1952
• Citation: 1952 (3) SA 307 (O)
• Hearing Date: 31 January 1952
• Court: Orange Free State Provincial Division

Horwitz, J.:

This matter was placed on the roll for default judgment A under Rule of Court 42 in the following circumstances: A summons, issued out of this Court on the 4th December, 1951, at the instance of plaintiff, was served, together with plaintiff's declaration, on the defendant company on the following day. Appearance to defend the action was entered by the defendant on the 8th December, 1951. At 3.15 p.m. on the 28th December, 1951, plaintiff's attorney served upon defendant's B attorney a notice requiring the defendant to except, answer or plead to the plaintiff's declaration within forty-eight hours after service of the notice and intimating that, unless the notice were complied with, defendant would be barred from excepting, answering or pleading. Defendant's reaction to this notice was to serve upon the C plaintiff's attorney a request for further particulars to the declaration 'in order to enable the defendant to plead'. This request was served on plaintiff's attorney at 11.30 a.m. on the 29th December, 1951, that is to say, before the period stated in the notice of bar had expired. Plaintiff did not respond to the request for further D particulars, but, on the 25th January, 1952, his attorney gave the defendant's attorney notice that the 'matter will be set down for granting of default judgment' on the 31st January, 1952, 'in terms of Rule 42'.

Mr. de Villiers, who moved for judgment by default on behalf of the E plaintiff, accepted the contention advanced by Nathan and Bowker (Rules and Practice of the Supreme Court, 2nd ed., p. 50) that, where a summons and a declaration are served simultaneously, a defendant should under Rules 20 and 29 of this Court have twenty-one days in which to plead to the declaration. It seems unnecessary to deal with this contention F because it was common cause between the parties that plaintiff was, on the 28th December, 1951, entitled to give the defendant notice of bar. On that basis Mr. de Villiers made the following points: (a) Once notice of bar has been given, a defendant can only file a plea within the G 48-hour period; he cannot apply for particulars. He submitted that particulars can only be requested within 14 days of the service of the declaration, but he conceded that in actual practice particulars have often been requested and furnished after the lapse of that period. (b) As an alternative argument Mr. de Villiers submitted that, even if particulars could be asked for, and ordered, after notice of bar had H been given, the right to do so can only exist where the particulars are reasonably necessary, and, in the present case, the request for particulars was such that an application to Court to order plaintiff to furnish them would have been refused. As Mr. Miller, for the defendant, also confined his arguments to the two points mentioned above, they will be dealt with in the order stated.

Horwitz J

Having enjoyed the advantage of reading the judgment prepared by my Brother BRINK on the second point argued before us, and agreeing, as I do, with the conclusions arrived at by him on the issues raised thereby and the order proposed by him. I shall limit my observations to the first point discussed by counsel.

A The Court was referred to the decision in Nangle and Another v Aronowitz, 1949 (2) SA 713 (SR). In that case notice of bar was served on the 5th November and particulars were applied for on the following day. The particulars asked for were supplied on the 30th B November. No plea was filed thereafter, and on the 11th February of the following year plaintiff's attorney barred the defendants in terms of the notice served on the 5th November. The case was set down for hearing as an uncontested matter on the 15th March. Defendants' attorney heard fortuitously of this and instructed counsel to appear. An order was made postponing the hearing of the action and giving the defendants C leave to apply for removal of bar. In the application which followed on the order, the validity of the enforcement on the 11th February of the notice of bar previously given on the 5th November fell to be decided. The Court concluded that the notice of intention to bar the defendants, D given before the furnishing of particulars which the plaintiff later gave to the defendants, was premature, and that the acquiescence of the plaintiff in supplying the particulars requested by the defendants invalidated the notice.

In considering the decision referred to, it must be borne in mind that E the matter of requesting and furnishing further and better particulars is largely regulated in Southern Rhodesia, as it is in England, by rules of Court dealing therewith. In the Union, on the other hand, the practice in regard to particulars has as its foundation the exercise by the Courts of their inherent jurisdiction 'so to regulate the proceedings' before them 'on equitable principles as to bring the issues F before the Court with a minimum expenditure of time and money'. (Macaskill v Fourie, 1943 OPD 35 at p. 37; G. A. Fichardt Ltd v Smith, 1929 OPD 93 at p. 96; Schoeman v Fourie, 1940 OPD 38 at p. 41. See also Osman v Jhavary and Others, 1939 AD 351 at p. 365; G Theron v Theron, 1924 AD 244 at p. 248; and, generally, Tahan v Griffiths, 1950 (3) SA 899 (O).) While this fundamental difference cannot be lost sight of, the decision in Nangle's case, supra, affords, in my view, a useful guide, in that it is largely based on considerations and principles fully recognised and applied by our Courts.

H Before proceeding to discuss the reasoning underlying the decision in Nangle's case, supra, it may be not irrelevant to interpolate some general observations with regard to pleadings and further particulars. In Tahan v Griffiths, 1950 (3) SA 899 (O), it was stated in general terms that the functions of particulars were to limit the generality of the allegations in the pleadings, to define the issues with greater precision and to prevent the party who asks

Horwitz J

for further particulars from being taken by surprise at the trial. In the present case, however, where the question of particulars arises only in relation to pleadings, the emphasis must be on the functions of particulars in so far as they serve the purpose of pleadings. For, A particulars envisage and embrace the purpose of pleading and that of trial. In consequence a party may be entitled to demand further particulars both before and after he has filed an answer to his opponent's pleading. From this it follows that a pleading may not be defective, in the sense that it contains sufficiently clear and precise B allegations to which the other side may fairly and reasonably be called upon to answer, but it may nevertheless be reasonable at some stage of the proceedings, even after the pleadings have been closed, to order further particulars to be furnished so as to avoid surprise at the trial or to enable the opponent to prepare for trial. Since in the C present case the consideration must be limited to the functions of particulars in relation to pleadings, the general principle to which regard must be had is that such particulars should be embodied in a pleading as are 'required to fill in the picture', in the instant case, D of the plaintiff's claim or cause of action, in order that the defendant may plead thereto, or, as was said by LORD GREENE, M.R., in Monk v Redwing Aircraft Co., Ltd., 1942 (1) A.E.R. 133 at p. 136, 'in order that the whole meaning of the claim as particularised may be brought to light'. The distinction between particulars required for pleadings and those necessary for purposes of trial is referred to also in Samuels and E Another v William Dunn & Co. (S.A.) (Pty.), Ltd., 1949 (1) SA 1149 at p. 1158 (T). A further function of particulars in relation to pleadings is, of course, to enable a defendant, if so advised, to plead a tender (Margau v King, 1948 (1) SA 124 at p. 130 (W), as explained in Reid, N.O v Royal Insurance Co., Ltd., 1951 (1) SA 713 at p. 717 F (T)), or to make a payment into Court (Monk v Redwing Aircraft Co. Ltd., 1942 (1) A.E.R. 133 (C.A.)). A reference here to the opinion of VAUGHAN-WILLIAMS, L.J., in Milbank v Milbank, 1900 (1) Ch. 376, may not be amiss. At p. 385 the learned Judge...