Du Toit v Du Toit and Another (46677/2021) [2023] ZAGPPHC 1923 (15 November 2023)

Du Toit v Du Toit and Another (46677/2021) [2023] ZAGPPHC 1923 (15 November 2023)

The court found that the first exception was raised against the unamended particulars of claim and became redundant once the particulars were amended. The respondent did not take any further procedural step after the amendment, and the first exception was not responsive to the amended particulars. Applying the possibility test from Nqabeni Attorneys Incorporated v God Never Fails Revival Church, the court held that a consequential adjustment under rule 28(8) was not possible, as the first exception was no longer relevant. The notice of bar was therefore a competent procedural step, and the respondent’s rule 30(1) notice was an irregular step that should be set aside. The respondent’s...

Citation
[2023] ZAGPPHC 1923
Parties
Applicant: Jacobus Christiaan Faure Du Toit; Respondent: Foteini Maria Du Toit; Respondent: Legal Practitioners’ Indemnity Insurance Fund
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 November 2023
Case Number
46677/2021
Procedural Posture
Civil Application / Interlocutory Applications: Rule 30(1) Notice, Condonation Under Rule 28(8), and Exception Determination
Outcome
The applicant’s rule 30(1) notice application succeeds; the first respondent’s rule 30(1) notice is set aside, and the application for condonation under rule 28(8) is dismissed. Costs are awarded to the applicant.
Judges
Retief
Legal Topics
Rule 30 Irregular Steps, Rule 28 Amendment of Pleadings, Exception to Pleadings, Condonation, Notice of Bar
Civil Procedure Rule 30 Irregular Steps Rule 28 Amendment of Pleadings Exception to Pleadings Condonation Notice of Bar

Case Brief

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Parties

Jacobus Christiaan Faure Du Toit

Applicant

Foteini Maria Du Toit

Respondent

Legal Practitioners’ Indemnity Insurance Fund

Respondent

Procedural Posture

Civil Application / Interlocutory Applications: Rule 30(1) Notice, Condonation Under Rule 28(8), and Exception Determination

Legal Issues

  1. 1 Whether the first respondent’s rule 30(1) notice dated 25 April 2022 was an irregular step and should be set aside.
  2. 2 Whether the first respondent’s application for condonation in terms of rule 28(8) for late filing of the second exception should be granted.
  3. 3 Whether the first exception remained relevant after amendment of the particulars of claim and whether a consequential adjustment under rule 28(8) was possible.

Ratio Decidendi

The court found that the first exception was raised against the unamended particulars of claim and became redundant once the particulars were amended. The respondent did not take any further procedural step after the amendment, and the first exception was not responsive to the amended particulars. Applying the possibility test from Nqabeni Attorneys Incorporated v God Never Fails Revival Church, the court held that a consequential adjustment under rule 28(8) was not possible, as the first exception was no longer relevant. The notice of bar was therefore a competent procedural step, and the respondent’s rule 30(1) notice was an irregular step that should be set aside. The respondent’s...

Court Disposition

The applicant’s rule 30(1) notice application succeeds; the first respondent’s rule 30(1) notice is set aside, and the application for condonation under rule 28(8) is dismissed. Costs are awarded to the applicant.

Orders

  • The first respondent’s rule 30(1) notice dated 25 April 2022 is hereby set aside.
  • The first respondent’s application for condonation in terms of rule 28(8) is dismissed.