EOH Mthombo (Pty) Limited v Buzz Trading 236 (Pty) Limited t/a Buzz Mobile (25119/2019) [2021] ZAGPJHC 648 (11 November 2021)

EOH Mthombo (Pty) Limited v Buzz Trading 236 (Pty) Limited t/a Buzz Mobile (25119/2019) [2021] ZAGPJHC 648 (11 November 2021)

The court found that the second notice of bar was delivered irregularly while an exception was pending, contrary to the Uniform Rules of Court. The exception constituted a valid pleading, and no plea was required until the exception was finalized. The plaintiff's refusal to uplift the notice of bar and its conduct in persisting with the irregular step caused unnecessary delay and costs, amounting to prejudice against the defendant. The court exercised its discretion to set aside the notice of bar and awarded punitive costs against the plaintiff.

Citation
[2021] ZAGPJHC 648
Parties
Applicant: EOH Mthombo (Pty) Limited; Respondent: Buzz Trading 236 (Pty) Limited t/a Buzz Mobile
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 November 2021
Case Number
25119/2019
Procedural Posture
Civil Application / Application to Set Aside Notice of Bar as Irregular Step
Outcome
Application granted; notice of bar set aside as irregular step; costs awarded against plaintiff on attorney and client scale.
Judges
Nichols
Legal Topics
Rule 30 Irregular Step, Notice of Bar, Exception Procedure, Attorney and Client Costs
Civil Procedure Rule 30 Irregular Step Notice of Bar Exception Procedure Attorney and Client Costs

Case Brief

Summary, issues, holding and outcome

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Parties

EOH Mthombo (Pty) Limited

Applicant

Buzz Trading 236 (Pty) Limited t/a Buzz Mobile

Respondent

Procedural Posture

Civil Application / Application to Set Aside Notice of Bar as Irregular Step

Legal Issues

  1. 1 Whether the second notice of bar delivered by the plaintiff constituted an irregular step under rule 30.
  2. 2 Whether the defendant was required to deliver a plea while an exception was pending.
  3. 3 Whether a punitive costs order against the plaintiff or its attorneys is warranted.

Ratio Decidendi

The court found that the second notice of bar was delivered irregularly while an exception was pending, contrary to the Uniform Rules of Court. The exception constituted a valid pleading, and no plea was required until the exception was finalized. The plaintiff's refusal to uplift the notice of bar and its conduct in persisting with the irregular step caused unnecessary delay and costs, amounting to prejudice against the defendant. The court exercised its discretion to set aside the notice of bar and awarded punitive costs against the plaintiff.

Court Disposition

Application granted; notice of bar set aside as irregular step; costs awarded against plaintiff on attorney and client scale.

Orders

  • The plaintiff’s notice of bar dated 2 September 2020 is declared to be an irregular step and is set aside in its entirety.
  • The plaintiff must pay the defendant’s costs in the rule 30 application on an attorney and client scale.