Manyasha v Minister of Law and Order (113/97) [1998] ZASCA 112; 1999 (2) SA 179 (SCA); [1999] 1 All SA 242 (A) (27 November 1998)

Manyasha v Minister of Law and Order (113/97) [1998] ZASCA 112; 1999 (2) SA 179 (SCA); [1999] 1 All SA 242 (A) (27 November 1998)

The Supreme Court of Appeal held that Rule 10 of the Magistrates' Court Rules applies to both defended and undefended actions. The omission of the word 'undefended' and the inclusion of reference to service of summons in the Rule's wording signified a deliberate intention by the rule-maker to broaden its scope. The Rule penalises a plaintiff who fails to take further steps in prosecuting the action within twelve months after service of summons, regardless of whether the action is defended. The Court further held that Rule 60(5) allows for the extension of any time limit prescribed by the Rules, including the twelve-month period in Rule 10, either by written consent of the opposite party...

Citation
[1998] ZASCA 112
Parties
Appellant: T G Manyasha; Respondent: Minister of Law and Order
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 November 1998
Case Number
113/97
Procedural Posture
Civil Appeal / Appeal From Eastern Cape Division, After Dismissal of Application and Upholding of Special Plea in Magistrate's Court
Outcome
Appeal allowed; orders of the lower courts set aside; extension of time granted under Rule 60(5); special plea dismissed.
Judges
Smalberger, Scott, Zulman, Melunsky, Farlam
Legal Topics
Magistrates Court Rules, Rule 10 Lapse of Summons, Rule 60 5 Extension of Time, Interpretation of Statutory Rules
Civil Procedure Magistrates Court Rules Rule 10 Lapse of Summons Rule 60 5 Extension of Time Interpretation of Statutory Rules

Case Brief

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Parties

T G Manyasha

Appellant

Minister of Law and Order

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape Division, After Dismissal of Application and Upholding of Special Plea in Magistrate's Court

Legal Issues

  1. 1 Does Rule 10 of the Magistrates' Court Rules apply to both defended and undefended actions, or only to the latter.
  2. 2 Can Rule 60(5) be invoked to revive a summons that has lapsed under Rule 10.

Ratio Decidendi

The Supreme Court of Appeal held that Rule 10 of the Magistrates' Court Rules applies to both defended and undefended actions. The omission of the word 'undefended' and the inclusion of reference to service of summons in the Rule's wording signified a deliberate intention by the rule-maker to broaden its scope. The Rule penalises a plaintiff who fails to take further steps in prosecuting the action within twelve months after service of summons, regardless of whether the action is defended. The Court further held that Rule 60(5) allows for the extension of any time limit prescribed by the Rules, including the twelve-month period in Rule 10, either by written consent of the opposite party...

Court Disposition

Appeal allowed; orders of the lower courts set aside; extension of time granted under Rule 60(5); special plea dismissed.

Orders

  • The appeal is allowed, with costs.
  • The order of the court a quo is set aside.