McNally NO and Others v Codron and Others (20406/11) [2012] ZAWCHC 17 (9 March 2012)

McNally NO and Others v Codron and Others (20406/11) [2012] ZAWCHC 17 (9 March 2012)

The court held that the delivery of a notice of intention to except after service of a notice of bar does not constitute a valid procedural step under Rule 26 of the Uniform Rules of Court. A notice of intention to except is not a pleading and does not advance the proceedings one stage nearer completion. The proper response to a notice of bar is the delivery of a plea, an exception, or an application to strike out. The defendants' notice of intention to except was therefore an irregular step and falls to be set aside under Rule 30. The court reaffirmed that only the delivery of a pleading, such as an exception, constitutes compliance with a notice of bar. The authorities relied upon by...

Citation
[2012] ZAWCHC 17
Parties
Applicant: Spencer Leonard James McNally N.O.; Applicant: Petro Heydenrych N.O.; Applicant: Lerix Investments (Pty) Ltd; Applicant: Karin Jennifer McNally N.O.; Applicant: Anthony George Crookes N.O.; Respondent: Salvatore Codron; Respondent: Salvatore Codron N.O.; Respondent: Claudia Codron N.O.; Respondent: Ronen Mazor N.O.; Respondent: Brian Neville Gamsu N.O.; Respondent: Investec Bank Limited; Respondent: The Master of the High Court
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
9 March 2012
Case Number
20406/11
Procedural Posture
Civil Application / Application to Set Aside Irregular Step Under Rule 30
Outcome
Application granted. The defendants' notice of intention to except is set aside as an irregular step. Costs awarded to the applicants.
Judges
NJ Yekiso
Legal Topics
Notice of Bar, Irregular Step, Exception Procedure, Uniform Rules of Court, Pleading Requirements
Civil Procedure Notice of Bar Irregular Step Exception Procedure Uniform Rules of Court Pleading Requirements

Case Brief

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Parties

Spencer Leonard James McNally N.O.

Applicant

Petro Heydenrych N.O.

Applicant

Lerix Investments (Pty) Ltd

Applicant

Karin Jennifer McNally N.O.

Applicant

Anthony George Crookes N.O.

Applicant

Salvatore Codron

Respondent

Salvatore Codron N.O.

Respondent

Claudia Codron N.O.

Respondent

Ronen Mazor N.O.

Respondent

Brian Neville Gamsu N.O.

Respondent

Investec Bank Limited

Respondent

The Master of the High Court

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the delivery of a notice of intention to except after service of a notice of bar constitutes a valid procedural step under Rule 26 of the Uniform Rules of Court.
  2. 2 Whether a notice of intention to except is a pleading as contemplated by Rule 26.
  3. 3 Whether the defendants' notice of intention to except should be set aside as an irregular step under Rule 30.

Ratio Decidendi

The court held that the delivery of a notice of intention to except after service of a notice of bar does not constitute a valid procedural step under Rule 26 of the Uniform Rules of Court. A notice of intention to except is not a pleading and does not advance the proceedings one stage nearer completion. The proper response to a notice of bar is the delivery of a plea, an exception, or an application to strike out. The defendants' notice of intention to except was therefore an irregular step and falls to be set aside under Rule 30. The court reaffirmed that only the delivery of a pleading, such as an exception, constitutes compliance with a notice of bar. The authorities relied upon by...

Court Disposition

Application granted. The defendants' notice of intention to except is set aside as an irregular step. Costs awarded to the applicants.

Orders

  • The first, second, third and fifth defendants' notice of intention to except to the plaintiffs' particulars of claim, served on 13 December 2011, is set aside as an irregular step under Rule 30(3) of the Uniform Rules of Court.
  • The first, second, third and fifth defendants are ordered to pay the plaintiffs' costs, jointly and severally, the one paying the other to be absolved.