Maseko v Member of the Executive Council, Department of Education ,North West Province (1572/2016) [2018] ZANWHC 47 (4 October 2018)

Maseko v Member of the Executive Council, Department of Education ,North West Province (1572/2016) [2018] ZANWHC 47 (4 October 2018)

The court held that the delivery of a Rule 35(14) notice does not suspend the period within which the defendant must file a plea after a Notice of Bar is served. The defendant was required to either plead or apply for an extension of time. Since the defendant did neither, it was barred from delivering a plea. The plaintiff's Notice of Bar was found to be regular and in compliance with the Rules. The defendant's application to set aside the Notice of Bar and compel compliance with the Rule 35(14) notice was dismissed. The court further found that the defendant proceeded with the application despite being advised of the correct legal position, and therefore costs were awarded against the...

Citation
[2018] ZANWHC 47
Parties
Plaintiff: Rebecca Stompie Maseko; Defendant: Member of the Executive Council, Department of Education, North West Province
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
4 October 2018
Case Number
1572/2016
Procedural Posture
Interlocutory Application / Application for Condonation and Setting Aside of Notice of Bar
Outcome
Defendant's application dismissed with costs; plaintiff's point in limine upheld.
Judges
Gura
Legal Topics
Notice of Bar, Rule 35 Discovery, Condonation, Pleading Requirements
Civil Procedure Notice of Bar Rule 35 Discovery Condonation Pleading Requirements

Case Brief

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Parties

Rebecca Stompie Maseko

Plaintiff

Member of the Executive Council, Department of Education, North West Province

Defendant

Procedural Posture

Interlocutory Application / Application for Condonation and Setting Aside of Notice of Bar

Legal Issues

  1. 1 Does the delivery of a notice in terms of Rule 35(14) suspend the period within which the defendant must file a plea?
  2. 2 Was the plaintiff's Notice of Bar irregular and liable to be set aside?
  3. 3 Is the defendant entitled to compel compliance with its Rule 35(14) notice before pleading?

Ratio Decidendi

The court held that the delivery of a Rule 35(14) notice does not suspend the period within which the defendant must file a plea after a Notice of Bar is served. The defendant was required to either plead or apply for an extension of time. Since the defendant did neither, it was barred from delivering a plea. The plaintiff's Notice of Bar was found to be regular and in compliance with the Rules. The defendant's application to set aside the Notice of Bar and compel compliance with the Rule 35(14) notice was dismissed. The court further found that the defendant proceeded with the application despite being advised of the correct legal position, and therefore costs were awarded against the...

Court Disposition

Defendant's application dismissed with costs; plaintiff's point in limine upheld.

Orders

  • The plaintiff's point in limine is upheld.
  • The defendant's application is dismissed with costs.