Absa bank Ltd v Phenyo General Supply CC + 1 (45466/12) [2013] ZAGPPHC 286 (11 October 2013)

Absa bank Ltd v Phenyo General Supply CC + 1 (45466/12) [2013] ZAGPPHC 286 (11 October 2013)

The court found that the summons issued by the applicant was a simple summons, not a combined summons, as the particulars of claim were included in the body of the summons and not annexed as a separate document. The presence of the heading 'Particulars of Claim' within the summons did not convert it into a combined summons. The applicant was therefore entitled to file a declaration. The respondents' plea and counterclaim constituted an irregular step under Rule 30(1) and were set aside. The applicant was granted leave to file its declaration within ten days. Costs were ordered to be costs in the cause.

Citation
[2013] ZAGPPHC 286
Parties
Applicant: Absa Bank Limited; Respondent: Phenyo General Supply CC + 1
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 October 2013
Case Number
45466/12
Procedural Posture
Civil Application / Rule 30(1) Irregular Step Application
Outcome
Application granted; plea and counterclaim set aside; applicant permitted to file declaration.
Judges
Hassim A
Legal Topics
Irregular Step, Simple Summons, Combined Summons, Pleadings, Declaration Filing
Civil Procedure Irregular Step Simple Summons Combined Summons Pleadings Declaration Filing

Case Brief

Summary, issues, holding and outcome

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Parties

Absa Bank Limited

Applicant

Phenyo General Supply CC + 1

Respondent

Procedural Posture

Civil Application / Rule 30(1) Irregular Step Application

Legal Issues

  1. 1 Whether the plea and counterclaim filed by the respondents constituted an irregular step under Rule 30(1).
  2. 2 Whether the applicant was entitled to file a declaration after delivering a simple summons.
  3. 3 Whether the summons issued was a simple summons or a combined summons under the Uniform Rules.

Ratio Decidendi

The court found that the summons issued by the applicant was a simple summons, not a combined summons, as the particulars of claim were included in the body of the summons and not annexed as a separate document. The presence of the heading 'Particulars of Claim' within the summons did not convert it into a combined summons. The applicant was therefore entitled to file a declaration. The respondents' plea and counterclaim constituted an irregular step under Rule 30(1) and were set aside. The applicant was granted leave to file its declaration within ten days. Costs were ordered to be costs in the cause.

Court Disposition

Application granted; plea and counterclaim set aside; applicant permitted to file declaration.

Orders

  • The defendant's plea and counterclaim is set aside.
  • The plaintiff is to deliver its declaration within ten days of this order.