Oos Vrystaat Kaap Operations Limited v Frelon Boerdery (Pty) Ltd and Others (2496/2020) [2021] ZAFSHC 341 (20 April 2021)

FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA

Reportable: NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

Case No: 2496/2020

In the matter between:

OOS VRYSTAAT KAAP OPERATIONS LTD APPLICANT

and

FRELON BOERDERY (PTY) LTD 1st RESPONDENT

CAREL PIETER CRONJE HUMAN 2nd RESPONDENT

ELIZABETH CATHARINA MARIA HUMAN 3rd RESPONDENT

JUDGMENT BY: MOLITSOANE, J

HEARD ON : 18 MARCH 2021

DELIVERED ON : 20 APRIL 2021

[1] The Plaintiff applies for default judgment against the Defendants in respect of four distinct separate claims, on the basis that the defendants had been barred from delivering pleas.

[2] On 13 July 2020, the Plaintiff issued summons against the Defendants claiming:

1. Claim 1: Payment of R1 638 904,70 under two credit agreements;

2. Delivery of a Nissan NP200 motor vehicle purchased in terms of an instalment sale agreement;

3. Delivery of a 25 Ha Agrico Pivot purchased under an instalment sale agreement;

4. Claim 4: Payment of R4 832 885,49 being a claim under a loan agreement;

[3] On 7 August 2020, the Defendants entered appearances to defend the actions. On 9 September 2020 the Plaintiff delivered its first notice of bar on the Defendants attorneys. On 15 September 2020, the Defendants delivered their first notice of exception in terms of Uniform Rule 23(1) to the plaintiff’s particulars of claim.

[4] The Plaintiff thereafter amended its particulars of claim in terms of Uniform Rule 28. A tender for costs was made by the Plaintiff and accepted by the Defendants for this amendment. On 19 November 2020, the defendants withdrew this notice of exception. On 23 November 2020, the defendants delivered a second notice of bar on the defendants. On 30 November 2020, the defendants delivered their second Rule 23(1) notice of exception. This Rule 23(1) notice was delivered on the last day of the days provided for in the second notice of bar.

[5] On 7 December 2020, the Plaintiff applied for default judgment, which is the subject of these proceedings. The application for default judgment is resisted on the following grounds:

(a) That the Plaintiff’s second notice of bar was pre-mature and

therefore a nullity;

(b) Alternatively, that the second notice of bar was complied with;

(c) That the Plaintiff’s particulars of claim are excipiable.

[6] The Defendants brought a counter application. They seek orders that they were not barred and that the Defendants agreed to the late delivery of the Rule 23(1) notice.

[7] The Defendants contend that the second notice of bar upon which this application for default judgment is pivoted, is premature. This contention is based on the fact that the Plaintiff, having amended its particulars of claim and the defendants having withdrawn the exception, the Defendants had twenty days to file their plea as contemplated in Rule 22(1). The Defendants thus contend that they had up to 19 January 2021 to file their plea from the date of the withdrawal of the exception. It thus follows, according to this argument that a notice of bar could only have been served after 19 January 2021.

[8] The Plaintiff, on the other hand, submits that the Defendants received the notice of bar without protestation of it being premature or being improper. According to the Plaintiff the Plaintiff responded to the notice of bar by way of filing a Rule 23(1) notice. The plaintiff submits that should this court find that the notice of bar was premature, then in that case the plaintiff submits that the defendants waived their rights in respect of such premature step by taking a positive step of filing the notice of exception.

[9]. It is common cause that the defendants excepted to the particulars of claim of the Plaintiff as a result of which the Plaintiff amended the said particulars of claim. It can be accepted that the exception raised was good in law as the Plaintiff rectified the particulars of claim. The exception was withdrawn on 19 November 2019 and this gave the Defendants 20 days to deliver the plea in terms of Rule 22(1). The Plaintiff, however, hardly two court days after the withdrawal of the exception, filed a notice of bar. The notice of bar filed just two days of the period allowed to the defendants to file a plea was thus premature.

[10] It is the contention of the Plaintiffs that the Defendants accepted the notice of bar without protestation of it being premature or improper. This argument does not assist the Plaintiff. The Plaintiff does not at all address the issue of the impropriety or otherwise of the notice. In the submissions before me, no contention is made that the filing of the notice was proper. It would seem to me that the Plaintiff concedes that the notice of bar is premature but contends that because the defendants did not contend it, and that they filed the notice to except in terms of Rule 23(1), then in that case they(Defendants) waived their rights. I cannot agree.

[11] The Defendants filed a Rule 23(1) notice pursuant to an improper notice of bar. If the argument of the Plaintiff was anything to go by, then this would mean that the Plaintiff, on its part, was not entitled to apply for default judgment without first having dealt with the notice of exception. Plaintiff should have, in that case applied for the setting aside of the notice as an irregular step. That they also did not do. In my view the second notice of bar was prematurely filed and is a nullity. Anything done pursuant to it must also be a nullity. The defendants are consequently not under a bar. In my view, this finding disposes of this application. An application for default judgement cannot be granted based on an improper notice of bar. It is unnecessary to deal with the counter application. The is no case made for punitive costs order as prayed for by the defendants. Costs will follow the suit. For the sake of giving clear guidelines as to further conduct of this case, I make the following order:

ORDER

1. The application for default judgment is struck of the roll with costs;

2. The counter application is dismissed;

3. No order of costs is made in respect of the counter application;

4. The Defendants are ordered to take steps envisaged in Rule 22(1) within 5 (five) days of this order failing which the Plaintiff may file the notice of bar.

P.E. MOLITSOANE, J

On behalf of the Plaintiff Adv S. Tsangarakis

Instructed by:

Symington and De Kok Attorneys

BLOEMFONTEIN

On behalf of the Defendants Adv E.J.J. Nel

Instructed by:

McIntyre and Van der Post Attorneys