Hill NO and Another v Brown (3069/20) [2020] ZAWCHC 61 (3 July 2020)

Hill NO and Another v Brown (3069/20) [2020] ZAWCHC 61 (3 July 2020)

The court held that a notice delivered in terms of rule 23(1)(a) is not a pleading and cannot be considered a valid response to a notice of bar under rule 26. Only a plea or an exception qualifies as a pleading for these purposes. The defendant's delivery of a rule 23(1)(a) notice after the notice of bar was therefore an irregular step. The court found that the plaintiffs would be prejudiced if the notice were allowed to stand, as it would permit the defendant to file an exception without having delivered a proper pleading. The court exercised its discretion to set aside the irregular step and held that the defendant is now under bar. If the defendant wishes to oppose the case, he must...

Citation
[2020] ZAWCHC 61
Parties
Plaintiff: Tracy Hill N.O.; Plaintiff: Lindiwe Florence Kaaba N.O.; Defendant: Mark Brown
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
3 July 2020
Case Number
3069/20
Procedural Posture
Civil Application / Application to Set Aside Irregular Step Under Rule 30
Outcome
The defendant's rule 23(1)(a) notice is declared an irregular step and set aside. The defendant is under bar and must apply under rule 27 to have the bar lifted if he wishes to oppose.
Judges
Rogers
Legal Topics
Rule 23 Exception, Rule 26 Notice of Bar, Rule 30 Irregular Step, Pleadings, Covid 19 Court Directions
Civil Procedure Rule 23 Exception Rule 26 Notice of Bar Rule 30 Irregular Step Pleadings Covid 19 Court Directions

Case Brief

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Parties

Tracy Hill N.O.

Plaintiff

Lindiwe Florence Kaaba N.O.

Plaintiff

Mark Brown

Defendant

Procedural Posture

Civil Application / Application to Set Aside Irregular Step Under Rule 30

Legal Issues

  1. 1 Whether a notice delivered in terms of rule 23(1)(a) constitutes a 'pleading' for purposes of rule 26.
  2. 2 Whether the defendant's delivery of a rule 23(1)(a) notice after a valid notice of bar is an irregular step.
  3. 3 Whether the defendant should be barred for failing to deliver a proper pleading in response to the notice of bar.

Ratio Decidendi

The court held that a notice delivered in terms of rule 23(1)(a) is not a pleading and cannot be considered a valid response to a notice of bar under rule 26. Only a plea or an exception qualifies as a pleading for these purposes. The defendant's delivery of a rule 23(1)(a) notice after the notice of bar was therefore an irregular step. The court found that the plaintiffs would be prejudiced if the notice were allowed to stand, as it would permit the defendant to file an exception without having delivered a proper pleading. The court exercised its discretion to set aside the irregular step and held that the defendant is now under bar. If the defendant wishes to oppose the case, he must...

Court Disposition

The defendant's rule 23(1)(a) notice is declared an irregular step and set aside. The defendant is under bar and must apply under rule 27 to have the bar lifted if he wishes to oppose.

Orders

  • The defendant's notice, purportedly in terms of rule 23(1)(a), dated 22 April 2020 is declared to be an irregular step and is set aside.
  • The defendant must pay the plaintiffs' costs in the rule 30 application.