Nqabeni Attorneys Incorporated v God Never Fails Revival Church and Others (40739/2017) [2019] ZAGPJHC 51 (7 March 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 40739/2017

In the matter between

NQABENI ATTORNEYS INCORPORATED PLAINTIFF/RESPONDENT

and

GOD NEVER FAILS REVIVAL CHURCH FIRST

DEFENDANT/APPLICANT

NHLANHLA DAVID NHLAPO SECOND

DEFENDANT/APPLICANT

VANGILE EMILY NHLAPO THIRD

DEFENDANT/APPLICANT

JUDGMENT

Headnote

Rule 22 (1) and Rule 28(8) of the Uniform Rules Of Court – Rule 22(1) which stipulates a 20 day period to serve a plea also governs the position of a defendant when filing a plea to an amended declaration or particulars of claim

Rule 28(8) can only have application when a plea is already flied at the time an amendment is effected because in that manner alone are “ consequential adjustments” required

Sutherland J:

Introduction

[1] This is an interlocutory application. The applicants are the defendants in an action instituted by the plaintiff, who is the

respondent in the application. To avoid confusion the parties are called Nqabeni and the Church, respectively, ie the plaintiff and the defendants collectively.

[2] The relief sought by the church is in terms of Rule 30 of the Uniform Rules of Court and is aimed at setting aside a notice of bar filed by Nqabeni as an irregular step. The root of the controversy is the proper interpretation of Rules 22 and 28 of the Uniform Rules of Court; ie does a defendant have 20 days to respond to an amended declaration, relying on Rule 22(1) or, 15 days, relying on Rule 28(8)?

[3] The rules provide thus:

22 Plea

(1) Where a defendant has delivered notice of intention to defend, he shall within twenty days after the service upon him of a declaration or within twenty days after delivery of such notice in respect of a combined summons, deliver a plea with or without a claim in

reconvention, or an exception with or without application to strike out.

28 Amendment of Pleadings and Documents

(1) Any party desiring to amend a pleading or document other than a sworn statement, filed in connection with any proceedings, shall notify all other parties of his intention to amend and shall furnish particulars of the amendment.

(2) The notice referred to in sub-rule (1) shall state that unless written objection to the proposed amendment is delivered within 10 days of delivery of the notice, the amendment will be effected.

(3) An objection to a proposed amendment shall clearly and concisely state the grounds upon which the objection is founded.

(4) If an objection which complies with sub-rule (3) is delivered within the period referred to in sub-rule (2), the party wishing to amend may, within 10 days, lodge an application for leave to amend.

(5) If no objection is delivered as contemplated in sub-rule (4), every party who received notice of the proposed amendment shall be deemed to have consented to the amendment and the party who gave notice of the proposed amendment may, within 10 days after the expiration of the period mentioned in sub-rule (2), effect the amendment as contemplated in sub-rule (7).

(6) Unless the court otherwise directs, an amendment authorised by an order of the court may not be effected later than 10 days after such authorisation.

(7) Unless the court otherwise directs, a party who is entitled to amend shall effect the amendment by delivering each relevant page in its amended form.

(8) Any party affected by an amendment may, within 15 days after the amendment has been effected or within such other period as the court may determine, make any consequential adjustment to the documents filed by him, and may also take the steps contemplated in Rules 23 and 30.

(9) A party giving notice of amendment in terms of sub-rule (1) shall, unless the court otherwise directs, be liable for the costs thereby occasioned to any other party.

(10) The court may, notwithstanding anything to the contrary in this rule, at any stage before judgment grant leave to amend any pleading or document on such other terms as to costs or other matters as it deems fit.

The Facts

[4] The controversy arises from these happenings:

4.1 A declaration was filed by Nqabeni.

4.2 An exception was filed by the church to the declaration.

4.3 Nqabeni thereupon amended the declaration on 1 June 2018.

4.4 Nqabeni filed a notice of bar when the church did not plead within 15 days thereof; ie the notice of bar was filed on 2 July 2018, being the 19th day after the effecting of the amendments.

4.5 The church filed a special plea on 11 July 2018.

4.5.1 Nqabeni objected that it was an irregular step as the defendant was under bar, and the special plea was withdrawn on 23 July 2019.

4.6 The church filed a Rule 30 notice to set aside the notice of bar on 24 July 2018.

4.7 Time passed, and Nqabeni set the Rule 30 application down for a hearing on 26 February 2019.

[5] The thesis advanced on behalf of Nqabeni is that Rule 28(8) plainly states that “a party affected by an amendment” has 15 days to respond. It is argued that the 20-day period provided in Rule 22(1) can no longer apply, once an amendment has been made because the defendant is “affected” by that amendment.

[6] The phrase, “affected by the amendment” lifted out of the text of the rule, might be capable of such a construction, but because the proper approach to interpretation of any enactment or rule is purposive and holistic, to attribute such a meaning would be incorrect.[1] The whole of Rule 28(8) must be read in the context of Rule 28. Rule 28 addresses several permutations arising from the amendment of pleadings. Rule 28(8) is simply one of those permutations.

[7] In order for an amendment to party “A” s pleading to “affect” the other party “B” in the way contemplated by Rule 28(8), the amendment has to result in “B” having an election to “….make any consequential

adjustment to the documents filed by him…...” If no “consequential adjustments” are possible, plainly the rule cannot apply. It must therefore follow that if party “B” has not already filed a document which might require “adjustment”, then the rule is inapplicable.

[8] In this case, the exception filed by the church to the initial declaration in its unamended form, which is the only document of the church which has been filed, does not require any adjustment as it is redundant after the amendment, having served its purpose by provoking the amendment. Logically, only a plea to the declaration might attract the risk of requiring a “consequential adjustment”. The term “adjustment” is well chosen because it implies an adaptation as a response to something that “affects” it; it cannot be a fresh initiative, such as a document filed for the first time. Frequently, a declaration is sought to be amended after a plea has been filed. The risk exists that the initial plea is non-responsive to the declaration in its amended form and in such a case, the defendant has 15 days to “adjust” its plea. That is not the position on these facts.

[9] Accordingly, the provisions of Rule 22(1) apply to the time for delivering a plea for the first time, not those of Rule 28(8).

[10] An ancillary controversy emanates from the contention that because the filing by the church of a special plea on 11 July constitutes “a further step”, the church was snookered by being unable to file a Rule 30 application to set aside the notice of bar. This notion is misconceived. The special plea was withdrawn because it was recognised as being irregular, the notice of bar inhibiting further pleading. If taking a mistaken step cannot be undone, the norms inherent in civil procedure would have to be so rigid that it would resemble a game of chess in which you cannot take back a move. That perspective serves no useful purpose. Had the special plea not been withdrawn a Rule 30 application would have forced its removal, placing the parties in exactly the position in which they now are placed. Therefore, on these facts, once the special plea was withdrawn there existed no “step” which inhibited a Rule 30 application from being filed.

[11] The implications of an amended declaration, or of particulars of claim, which is the issue which fuelled this controversy have not been the subject of comment by the usual learned sources. In Erasmus, Superior Court Practice, 2nd Ed, D1-343 and in Harms, Civil Procedure in the Supreme Court, B28:13A no commentary is offered on the type of predicament alleged

to exist on these facts. Both refer to Wendy Machanik Property Holdings CC v Guiltwood Properties (Pty) Ltd 2007 (5) SA 90 (W), per Malan J, in which Rule 28(8) is criticised, but for its other dimensions which are irrelevant to this controversy. Herbstein and Van Winsen, Civil Practice of the High Courts of South Africa, pp 698-699, also offers no relevant commentary on the present controversy.

[12] In summary, I find as follows:

12.1 When a plaintiff accomplishes an amendment to a declaration, and no plea has yet been filed, the defendant is put on terms to comply with Rule 22(1) and thereby file a plea within 20 days.

12.2 The scope of Rule 28(8) is limited to circumstances where an amendment creates the risk of a ripple effect on pleadings already filed, which risks rendering those pleadings non-responsive to the amended pleading, and for that reason may be in need of an adjustment to render them responsive.

[13] The result is that the notice of bar was irregular and must be set aside.

[14] The Order

(1) The notice of bar delivered on 28 June 2018 is an irregular step and is set aside.

(2) The plaintiff shall bear the costs of the application on the opposed scale.

________________________________

ROLAND SUTHERLAND

Judge of the High Court

Gauteng Local Division, Johannesburg

Date of hearing: 27 February 2019

Date of judgment: 7 March 2019

For the Applicant/Defendant: Adv Anna Granova,

Instructed by Wentzel& Partners

For the Respondent/Plaintiff: Adv Fezile Memani,

Instructed by Nqabeni Attorneys

[1] Natal Joint Municipal Pension Fund v Endumeni Municipality 2012(4) SA 593 (SCA) at [17] – [18].