Moosa NO and Others v Hassam and Others (12256/08) [2009] ZAKZPHC 62; 2010 (2) SA 410 (KZP) (20 November 2009)

Moosa NO and Others v Hassam and Others (12256/08) [2009] ZAKZPHC 62; 2010 (2) SA 410 (KZP) (20 November 2009)

The court held that Rule 18(6) requires a party relying on a written contract to annex a true copy of the contract to its pleading. An allegation of non-possession does not constitute compliance with the rule nor does it excuse non-compliance. The respondents failed to seek condonation or provide facts explaining their inability to annex the agreement. Furthermore, evidence suggested that the respondents had received a copy of the agreement but did not annex it. The court concluded that the respondents must remedy the irregularity by annexing the contract within fifteen days, failing which their particulars of claim would remain irregular.

Citation
[2009] ZAKZPHC 62
Parties
Applicant: Imraan Cassim Rashid Moosa NO, Trustee of the Dassim Rashid Moosa Family Trust & 33 others; Respondent: Nadim Hassam NO, Trustee of the Mohamed Zukeiria Hassam Family Trust & 8 others
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
20 November 2009
Case Number
12256/08
Procedural Posture
Civil Application / Rule 30 Application to Set Aside Particulars of Claim as Irregular Proceeding
Outcome
Application granted. Respondents ordered to remedy the irregularity by annexing the written contract within fifteen days and to pay costs jointly and severally.
Judges
Swain
Legal Topics
Rule 18 6 Pleading Requirements, Irregular Proceedings, Written Contracts, Condonation Under Rule 27 3
Civil Procedure Commercial and Corporate Rule 18 6 Pleading Requirements Irregular Proceedings Written Contracts Condonation Under Rule 27 3

Case Brief

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Parties

Imraan Cassim Rashid Moosa NO, Trustee of the Dassim Rashid Moosa Family Trust & 33 others

Applicant

Nadim Hassam NO, Trustee of the Mohamed Zukeiria Hassam Family Trust & 8 others

Respondent

Procedural Posture

Civil Application / Rule 30 Application to Set Aside Particulars of Claim as Irregular Proceeding

Legal Issues

  1. 1 Whether a party relying on a written contract in pleadings must annex a true copy of the contract as required by Rule 18(6).
  2. 2 Whether an allegation of non-possession of the contract excuses non-compliance with Rule 18(6).
  3. 3 Whether failure to annex the contract renders the particulars of claim irregular and subject to being set aside under Rule 30.

Ratio Decidendi

The court held that Rule 18(6) requires a party relying on a written contract to annex a true copy of the contract to its pleading. An allegation of non-possession does not constitute compliance with the rule nor does it excuse non-compliance. The respondents failed to seek condonation or provide facts explaining their inability to annex the agreement. Furthermore, evidence suggested that the respondents had received a copy of the agreement but did not annex it. The court concluded that the respondents must remedy the irregularity by annexing the contract within fifteen days, failing which their particulars of claim would remain irregular.

Court Disposition

Application granted. Respondents ordered to remedy the irregularity by annexing the written contract within fifteen days and to pay costs jointly and severally.

Orders

  • The first to ninth respondents are directed to remedy the irregularity in their particulars of claim by annexing the written contract or a true copy thereof within fifteen days of service of this order on their attorney of record.
  • The first to ninth respondents are ordered to pay the costs of this application, jointly and severally, the one paying the others to be absolved.