ICT Globe Management (Pty) Ltd v MCT Telecommunications (Pty) Ltd (45176/2015) [2016] ZAGPPHC 1010 (14 October 2016)
- Citation
- [2016] ZAGPPHC 1010
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- G. T. Avvakoumides
- Case number
- 45176/2015
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- G. T. Avvakoumides
- Case number
- 45176/2015
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that neither party was able to produce the actual court order regarding the amendment. The judge held that, in the interests of progressing the litigation, logic and fairness required that the notice in terms of rule 26 be uplifted and that the respondent make available all documents listed in the applicant's rule 35 (12) notice within 10 days. The applicant was then ordered to file its plea within 10 days of inspecting or receiving the documents. The court clarified that the amendment to pleadings only takes effect upon compliance with rule 28 (7), unless the court orders otherwise, and that the applicant was entitled to the documents before being compelled to plead.
Court disposition
Application granted: notice in terms of rule 26 uplifted; respondent ordered to provide documents; applicant ordered to file plea after inspection; costs in the cause.
Orders
- The notice in terms of rule 26 dated 16 February 2016 is uplifted.
- The respondent must make available all documents listed in the applicant's rule 35 (12) notice dated 3 February 2016 within 10 days of this order and provide legible copies as necessary.
- The applicant must file its plea within 10 days of inspecting or receiving the documents listed above.
- The costs of this application shall be costs in the cause.
02
Material facts
Parties
ICT Globe Management (Pty) Ltd
Applicant Counsel: S. M. Van VuurenMCT Telecommunications (Pty) Ltd
Respondent Counsel: A. J. Schoeman03
Procedural history
Posture
Civil Application / Application for Upliftment of Rule 26 Notice and Related Interlocutory Relief
04
Questions and positions
Legal issues
- 01
Whether the notice in terms of rule 26 should be uplifted.
- 02
Whether the respondent was required to make documents available under rule 35 (12).
- 03
Whether the amendment to pleadings was effected immediately or only upon compliance with rule 28 (7).
- 04
Whether the applicant was obliged to file its plea after the amendment.
Party arguments
- Applicant
- The applicant contended that the amended pages were delivered late and, as such, the amendment lapsed. It argued that, according to rule 28 (6), a court order authorizes an amendment, but the amendment only takes effect when the steps prescribed in rule 28 (7) are taken within the applicable time limits, unless the court orders immediate effect. The applicant relied on its rule 35 (12) notice to call for inspection of documents and maintained it was not obliged to file its plea until the documents were made available.
- Respondent
- The respondent argued that the amended pages were delivered in time and that the court order had the effect of effecting the amendment immediately. It maintained that the applicant was required to file its plea and that the documents attached to the summons were the same as those requested for inspection. The respondent sought to compel the applicant to file its plea and relied on the notice in terms of rule 26.
05
Court’s reasoning
Legal principles
- 01
Uniform Rule 28 (6) and (7)
A court order authorizing an amendment does not itself effect the amendment; the amendment only takes effect when the steps prescribed in rule 28 (7) are taken within the applicable time limits, unless the court orders otherwise.
- 02
Uniform Rule 35 (12)
A party is entitled to inspection of documents referred to in pleadings or affidavits, and the opposing party must make such documents available within the prescribed period.
06
Ratio, limits and disposition
Ratio decidendi
The court found that neither party was able to produce the actual court order regarding the amendment. The judge held that, in the interests of progressing the litigation, logic and fairness required that the notice in terms of rule 26 be uplifted and that the respondent make available all documents listed in the applicant's rule 35 (12) notice within 10 days. The applicant was then ordered to file its plea within 10 days of inspecting or receiving the documents. The court clarified that the amendment to pleadings only takes effect upon compliance with rule 28 (7), unless the court orders otherwise, and that the applicant was entitled to the documents before being compelled to plead.
Obiter and limits
- The judge emphasized that logic must prevail to ensure the litigation proceeds efficiently.
- The court noted that neither counsel could produce the relevant court order, highlighting procedural uncertainty.
Court disposition
Application granted: notice in terms of rule 26 uplifted; respondent ordered to provide documents; applicant ordered to file plea after inspection; costs in the cause.
- The notice in terms of rule 26 dated 16 February 2016 is uplifted.
- The respondent must make available all documents listed in the applicant's rule 35 (12) notice dated 3 February 2016 within 10 days of this order and provide legible copies as necessary.
- The applicant must file its plea within 10 days of inspecting or receiving the documents listed above.
- The costs of this application shall be costs in the cause.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 45176/2015
DATE OF HEARING: 10 OCTOBER 2016
DATE OF JUDGMENT: 14 OCTOBER 2016
Reportable: No
Of interest to other judges: No
Revised.
In the matter between:
ICT GLOBE MANAGEMENT (PTY) LTD Applicant
and
MCT TELECOMMUNICATIONS (PTY) LTD Respondent
CORAM: Avvakoumides AJ
JUDGMENT
AVVAKOUMIDES, AJ
[1] This is an application for the upliftment of a notice in terms of rule 26 of the Uniform rules of court. The respondent (plaintiff)
issued summons against the applicant (defendant). Certain documents were annexed to the summons as annexures, which are the same
annexures forming part of the respondent's complaint against the application on the basis that these were not legible and some were not attached.
[2] After the summary judgment application, when leave was granted to defend, the respondent filed a notice to amend its pleadings. Such amendment was objected to. The respondent brought an application in terms of rule 28 (4). The applicant did not oppose the application despite having objected to the proposed amendment. The order sought to amend the pleadings was granted and the respondent filed the amended pages. The applicant alleges that the amended pages were delivered late and as such the amendment lapsed. The respondent on the other hand adopted the stance that the amended pages were in time and as such the applicant had to file its plea.
[3] Having not filed a plea and having relied upon its rule 35 (12) notice calling for the inspection of certain document, which are the same as the documents attached to the summons and ventilated at the summary judgment stage, the respondent filed a notice in terms of rule 26 calling upon the applicant to file its plea. The dies in terms of the rule 26 notice expired and the parties' attorneys each contending that they were right in interpreting the legal position vis a vis the amendment being effected immediately by the court or not, and the days within which the amendment pages were filed.
[4] In the process various notices in terms of rule 30 and rule 30A were filed leading up to this application. Ms Schoeman who appeared for the respondent submitted that the amended pages were not late because the court order had the effect of effecting the amendment sought immediately. Mr Van Vuuren for the applicant submitted, quite correctly with reference to rule 28 (6), that the sub-rule is clear that the court merely authorizes an amendment and that the amendment only takes effect when the steps prescribed in rule 28 (7) have been taken within the applicable time limits. This is of course unless the court orders the amendment to take effect immediately.
[5] Neither Ms Schoeman, nor Mr Van Vuuren, was able to show me the court order in respect of the amendment. Having considered the papers filed herein and having considered the submissions made by counsel I am of the view that logic must prevail in order to get the litigation on its way. In order to achieve this result I am of the view that the appropriate order herein would be to uplift the notice in terms of rule 26 and to simultaneously order the inspection of the documents sought by the respondent within a period of time followed by the filing of the plea.
[6] In the premises I make the following order:
[6.1] The notice in terms of rule 26 dated 16 February 2016 is hereby uplifted.
[6.2] The respondent is ordered to make available all the documents listed in the applicant's notice in terms of rule 35 (12) dated 3 February 2016 within 10 days of this order and to the extent necessary to provide legible copies of such documents to the applicant.
[6.3] The applicant is ordered to file its plea within 10 days of inspecting or receiving, copies of the documents listed in paragraph 6.2, as the case maybe.
[6.4] The costs of this application shall be costs in the cause.
________
G. T. AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
DATE: 14 OCTOBER 2016
Representation for Applicant:
Counsel:
S. M. Van Vuuren
Instructed by:
Van Zyl's Attorneys
Representation for the Respondent:
Counsel:
A. J. Schoeman
Instructed by:
Roestoff & Kruse
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