Bertobrite (Pty) Ltd v Kegtlengrivier Local Municipality (3200/19) [2021] ZANWHC 47 (20 April 2021)

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

IN THE HIGH

COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

Case No.: 3200/19

In the matter between:

BERTOBRITE (PTY) LTD

Applicant

And

KGETLENGRIVIER LOCAL MUNICIPALITY Respondent

JUDGMENT

MTEMBU

AJ

INTRODUCTION

[1] The applicant instituted an action against the respondent in which it claimed damages arising from breach of contract. A notice of opposition was filed by the respondent but a plea was not filed. This resulted in the respondent filing a notice of bar in term of Rule 26 of the Uniform Rules. An application for default judgment was then made by the applicant. The application for default judgment is opposed by the respondent.

THE

COMMON CAUSE FACTS

[2] The applicant served Summons on 03 December 2019. The respondent delivered its notice of intention to defend on 11 December 2019. A period of 20 days expired without a plea being delivered by the respondent. As a result thereof, the applicant served a notice of bar on 06 February 2020.

[3] The respondent delivered a notice of exception in terms of Rule 23 of the Uniform Rules on 11 February 2020, before the dies induciae (5 days) expired. The applicant never removed the course of complaint, as noted in the aforesaid notice. The period in which the respondent was required to file an exception lapsed. As a consequence thereof, the applicant served another notice of bar on 12 May 2020, requiring the respondent to file its plea on or before 19 May 2020. A day after, on 13 May 2020, the respondent delivered another notice of exception identical to the one served on 11 February 2020.

[4] The applicant advised the respondent to withdraw the notice of exception by filing a plea. According to the applicant, this conduct constituted an irregular step. However, no notice of irregular step was delivered by the applicant. It simply advised the respondent to remove the notice of exception. The respondent withdrew the notice of exception, and delivered an exception itself on 18 May 2020, before the dies induciae expired.

[5] According to the applicant, the respondent was restricted to filing of a plea. The respondent remained ipso facto barred from pleading, since it failed to deliver its plea on or before 19 May 2020. It was therefore, for these reasons, that the applicant applied for default judgment[1].

[6] I am therefore required to determine whether the respondent remained ipso facto barred from pleading, since it failed to file its plea. If the answer is affirmative, then the application for default judgment should be granted.

APPLICATION

OF THE LAW TO THE FACTS

[7] The question whether an exception is an appropriate reply to a notice of bar has been dealt with by courts on numerous occasions.

[8] In Landmark Mthatha (Pty) Ltd v King Sabata Dalindyebo 4 Municipality & others: In re African Bulk Earthworks (Pty) Ltd v Landmark Mthatha (Pty) Ltd & others 2010 (3) SA 81 (ECM). Griffiths AJ held that[2]:

‘[12] Secondly, the rule states: “If any party fails to deliver any other pleading . . .” (my emphasis). It does not refer to a declaration or a plea. The reason for this is obvious. Form 10 to the first schedule to the rules (the standard combined summons) calls upon the defendant to deliver “a plea, exception, notice to strike out, with or without a counter claim”. Although it has become practice (as has occurred in the present matter) to call upon the defendant (or third party) to file a plea without reference to an exception and notice to strike out (as in the combined summons), it is clear from the wording of this rule that it requires the defendant to take the next procedural step in the proceedings, be it an exception, plea or notice to strike out.

[13] It follows logically in my view that where a defendant, in response to a notice of bar, delivers an exception, he has taken the next procedural step in the matter and has thus complied with the demand made in the notice on pain of bar. In this regard, it has been held that an exception is in fact a pleading and thus falls squarely within the wording of rule 26.’ [My Emphasis]

[9] In Kramer Weihmann and Joubert Inc v South African Commercial Catering and Allied Workers Union (SACCAWU) (3818/2011) [2012] ZAFSHC 152 (16 August 2012), Molefe AJ held that, “When the respondent filed the rule 23(1) notice on the 30 May 2012, the respondent was still within the 5 day notice of bar period as the 5th day only lapsed on the 1 June 2012. [9] It follows logically in my view that where the respondent in response to a notice of bar delivers a rule 23(1) notice, he has taken the next procedural step in the matter and has thus complied with the court rules.”

[10] In Felix and Another v Nortier NO & Others(2) 1994 (4) SA 502 SE at 506D – H; the court decided that “after a notice of bar was served, the first defendant was perfectly entitled to file a notice of exception and not limit himself to filing a plea within the time period laid down by rule 26”.

[11] In Steve's Wrought Iron Works and Others v Nelson Mandela Metropolitan Municipality (441/2019) [2019] ZAECPEHC 78; 2020 (3) SA 535 (ECP) (21 November 2019) at para [15], the Court held that, ‘in this instance the notice of exception was delivered within the five day period provided in the notice of bar. That is permitted in accordance with the authorities referred to and the plain wording of the rules’.

[12] The defendant is entitled to serve a notice in terms of Rule 23(1) within the period allotted in the notice of bar. See Tuffsan Investments 1088 (Pty) Ltd v Sethole and Another (22826/2015) [2016] ZAGPPHC 653 (4 August 2016), at para 26.

[13] In this division Gutta J in Mokgokong v University of North West (314/16) [2017] ZANWHC 22 (8 June 2017) at para 13, held that the plaintiff cannot object to the exception on the ground that it was delivered outside the prescribed period allowed for delivery of a plea but before the expiry of the period provided in the notice of bar.

[14] In casu it is common cause that the applicant served two notices of bar. The first one was served on 06 February 2020. Before a period of 5 days expired, the respondent duly complied with the notice of bar by filing a notice of exception in terms of Rule 23(1). The submission that suggests that the respondent was only restricted to filing of a plea must fail. I have no reason to depart from the authorities stated above.

[15] It is further common cause that the applicant delivered the second notice of bar on 12 May 2020. This therefore means, by conduct, the applicant, correctly so, abandoned the first notice of bar. The first notice had been overtaken by events, being a notice of exception to it.

[16] It is also common cause that, upon receipt of second notice of bar, the respondent delivered a notice of exception before the period of 5 days expired. The applicant advised the respondent to withdraw this notice of exception since, according to applicant, the respondent was restricted to filing of a plea. The respondent withdrew the second notice of exception, but delivered an exception. All this is done before the period of 5 days lapsed.

[17] Whether, the respondent was correct to withdraw the second notice of exception by filing the exception itself is not an issue that I am required to determine. I am not required to determine the merits of exception, either from a procedural or substantive point of view. In my view, that issue is reserved for determination by the court dealing with the merits of the exception. Further, I am not dealing with an application for an irregular step in terms of Rule 30. It is common cause that there was no objection in terms of Rule 30 to the respondent’s exception regarding its procedural validity. Even the purported complaint was in respect of filing a notice of exception, instead of a plea. All what I have to determine is whether an exception, in its generic form, is an appropriate reply to a notice of bar.

[18] I therefore have reached the conclusion that the defendant/respondent was entitled to utilise Rule 23 in reply to the notices of bar within the period of 5 days, extended by the notice of bar and that the defendant had duly complied with the court rules. The submission that the respondent was only restricted to filing of a plea is without merit, and must accordingly fail.

[19] Mr Hewitt, appearing on behalf of the applicant submitted, incongruent with the application for default judgment, which is before Court. As already stated above, the application for default judgment is premised upon the basis that once a notice of bar is delivered, it is only a plea that can be an appropriate procedural step as contemplated in terms of Rule 22. During argument, Mr Hewitt made submission contrary to the averments made in the application for default judgment.

[20] He submitted that the issue to be determined is whether a notice of exception to remove cause of complaint is a permissible answer to a notice of bar. According to Mr Hewitt, a notice of exception is not an appropriate answer to a notice of bar. I have already found that it is an appropriate answer. He postured his argument by citing the case of Hill No and another v Brown (3069/20) [2020] ZAWCHC 61 (3 July 2020), where the court sought to differentiate between notice of exception and exception. This case also followed the earlier case of Mc Nally No & Others v Cordon & others 2012 ZAWCHC 17. According to these cases, a Rule 23(1)(a) notice served after delivery of the notice of bar would, ex hypothesi, be at least 20 days out of time. A defendant should only deliver an exception not preceded by a notice. The learned judges took the view that the notice itself is not a plea whereas the exception is a plea.

[21] In Tuffsan at paras 23, 24,25 and 26, VAN DER WESTHUIZEN, A J held that[3]:

“23. It was held in McNally, supra, that a party may only file a notice in terms of Rule 23(1) within the initial 20- day period allowed for the filing of a plea and that it was not open to a party to follow that procedure when a notice of bar is served. In this regard the court in McNally relied upon the specific wording of Rule 23.

24. The contrary was held in Felix et al v Notier NO et al (2).

25. I am in respectful agreement with the findings in this regard of Felix, supra, and Landmark Mbhatha, supra. To hold the contrary, as in McNal/y, supra, would disentitle a party after the initial period of 20 days within which to file an exception where the pleading is vague and embarrassing to thereafter take such an exception.”

[22] I am in full agreement with the Tuffson’s decision. The filing of a notice of exception, which is a peremptory requirement where it is alleged the pleading is vague and embarrassing, is permitted. Although I am not bound by these decisions of other divisions, I am persuaded that they are correctly decided. I am not so persuaded, to the contrary, by the decision of McNally N.O v Codrun and Other, which, in my viewis wrongly decided. Most importantly, my view is congruent with the decision of this division wherein Gutta J in Mokgokong endorsed the decisions that a notice of exception is an appropriate answer to a notice of bar.

[23] However, I failed to understand Mr Hewitt’s reliance on the Hill No and another v Brown and Mc Nally cases because the facts of the present case cover both scenarios. These cases do not come to the applicant’s rescue. In respect of the second notice of bar, the respondent delivered an exception. This procedural step is correct according to the cases that Mr Hewitt relied upon. Again, this supplementary submission which is not supported by facts as averred in the application for default judgment, does not get any shelter from the cited cases by Mr Hewitt.

[24] Accordingly, the application for default judgment must fail.

[25] Mr Hewitt submitted that in the event that this Court is not inclined to grant the application, it should regulate its process in this matter by placing the respondent on terms to set down the exception on a specific date, failing which it would be barred from pleading. While the submission is persuasive, I decline the invite to do so. I was not allocated to do case management in this matter. Any party in this matter is at liberty to approach this Court for case management in this matter.

COSTS

[26] What remains is the question of costs. The general rule is that costs must follow the result. It was submitted that because of the applicant’s conduct, costs should be awarded against it on the attorney and client scale. While some of this criticism is warranted, I do not think I can go as far as awarding punitive costs. Mr Hewittt submitted that each party pays its own costs. None of the parties should be penalised with a cost order. This matter is characterised by contradictory judgements. Inasmuch as I am inclined to grant costs, but the respondent’s faulty cannot be ignored. Conspicuously, the respondent has also been lackadaisical in prosecuting its exception, therefore it will be inimical to the interests of justice to award costs in its favour. It cannot benefit out of its sluggishness. In the circumstances, a cost order is not warranted.

ORDER

[27] Therefore, I grant the following order:

(a) The application for default judgment is dismissed.

(b) No order as to costs.

A.M.

MTEMBU

ACTING

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE

OF HEARING : 04 FEBRUARY 2021

DATE

OF JUDGMENT : 20 APRIL 2021

COUNSEL FOR THE APPLICANT : ADV D

HEWITT

COUNSEL FOR THE RESPONDENT : ADV V

MABUZA

[1] See paras 9 – 10 of the application for default judgment.

[2] See also Stemela v MEC for Health,Eastern Cape Province (3962/17) [2019] ZAECMHC 4 (12 February 2019) at para 11

[3] See also Steve's Wrought Iron Works and Others v Nelson Mandela Metropolitan Municipality (441/2019) [2019] ZAECPEHC 78; 2020 (3) SA 535 (ECP) (21 November 2019). Goosen J had the following to say: “[16] Plaintiffs’ counsel relied upon the judgment in McNally N.O v Codrun and Others[3] where Yekiso J held that that the filing of a notice of exception constitutes a procedural step which would not preclude a bar being imposed by notice of bar. The learned judge took the view that the notice itself is not a plea whereas the exception is a plea. He, however, expressed the view that the filing of an exception is a proper response to the filing of a notice of bar. Since only a notice to except was filed it was set aside as an irregular step in terms of Rule 30. [17] The finding of Yekiso J runs counter to the authority of this Division. It bears emphasis that it was specifically held in Felix[4] that a party is entitled to proceed to except in response to a notice of bar. Thus, the filing of a notice of exception, which is a peremptory requirement where it is alleged the pleading is vague and embarrassing, is permitted. This was followed in Landmark Mthatha (Pty) Ltd v King Sabata Dalinyebo Municipality et al: In re African Bulk Earthworks (Pty) Ltd v Landmark Mthatha (Pty) Ltd et al[5]. [18] I am bound by the decisions of this Division unless I am persuaded that they are

wrong. I am not so persuaded. To the contrary, they are, in my view, correctly decided. The decision in McNally N.O. in effect precludes a party who intends to object to a pleading on the basis that it is vague and embarrassing from taking such exception upon receipt of a notice of bar unless that party had filed such notice of intention to except within the initial period allowed for the filing of a plea. Such construction of rule 23(1), in my view, would defeat the purpose to be served by

the process of excepting to a pleading. [19] I am supported in this by the judgment of Tuffsan Investments 1088 (Pty) Ltd v Sethole and Another”

[3] See also Steve's Wrought Iron Works and Others v Nelson Mandela Metropolitan Municipality (441/2019) [2019] ZAECPEHC 78; 2020 (3) SA 535 (ECP) (21 November 2019). Goosen J had the following to say: “[16] Plaintiffs’ counsel relied upon the judgment in McNally N.O v Codrun and Others[3] where Yekiso J held that that the filing of a notice of exception constitutes a procedural step which would not preclude a bar being imposed by notice of bar. The learned judge took the view that the notice itself is not a plea whereas the exception is a plea. He, however, expressed the view that the filing of an exception is a proper response to the filing of a notice of bar. Since only a notice to except was filed it was set aside as an irregular step in terms of Rule 30.

[17] The finding of Yekiso J runs counter to the authority of this Division. It bears emphasis that it was specifically held in Felix[4] that a party is entitled to proceed to except in response to a notice of bar. Thus, the filing of a notice of exception, which is a peremptory requirement where it is alleged the pleading is vague and embarrassing, is permitted. This was followed in Landmark Mthatha (Pty) Ltd v King Sabata Dalinyebo Municipality et al: In re African Bulk Earthworks (Pty) Ltd v Landmark Mthatha (Pty) Ltd et al[5].

[18] I am bound by the decisions of this Division unless I am persuaded that they are wrong. I am not so persuaded. To the contrary, they are, in my view, correctly decided. The decision in McNally N.O. in effect precludes a party who intends to object to a pleading on the basis that it is vague and embarrassing from taking such exception upon receipt of a notice of bar unless that party had filed such notice of intention to except within the initial period allowed for the filing of a plea. Such construction of rule 23(1), in my view, would defeat the purpose to be served by

the process of excepting to a pleading.

[19] I am supported in this by the judgment of Tuffsan Investments 1088 (Pty) Ltd v Sethole and Another”