OOS Vrystaat Kaap Operations Ltd v Frelon Boerdery (Pty) Ltd & others (2496/2020) [2021] ZAFSHC 127 (20 April 2021)

OOS Vrystaat Kaap Operations Ltd v Frelon Boerdery (Pty) Ltd & others (2496/2020) [2021] ZAFSHC 127 (20 April 2021)

The court found that the Plaintiff's second notice of bar was served prematurely, as it was delivered only two court days after the withdrawal of the exception, before the Defendants' twenty-day period to file their plea had expired. The notice of bar was therefore a nullity, and any procedural steps taken pursuant to it, including the application for default judgment, were also nullities. The Defendants were not under bar, and the Plaintiff was not entitled to default judgment. The court further held that the Defendants' response to the premature notice did not amount to waiver of their rights. The counter application was dismissed, and the Defendants were ordered to take steps envisaged...

Citation
[2021] ZAFSHC 127
Parties
Applicant: OOS Vrystaat Kaap Operations Ltd; Respondent: Frelon Boerdery (Pty) Ltd; Respondent: Carel Pieter Cronje Human; Respondent: Elizabeth Catharina Maria Human
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
20 April 2021
Case Number
2496/2020
Procedural Posture
Default Judgment Application / Application for Default Judgment and Counter Application
Outcome
Application for default judgment struck off the roll with costs; counter application dismissed; Defendants ordered to deliver plea within five days.
Judges
Molitsoane
Legal Topics
Notice of Bar, Default Judgment, Rule 23 Exception, Rule 22 Plea, Amendment of Particulars
Civil Procedure Notice of Bar Default Judgment Rule 23 Exception Rule 22 Plea Amendment of Particulars

Case Brief

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Parties

OOS Vrystaat Kaap Operations Ltd

Applicant

Frelon Boerdery (Pty) Ltd

Respondent

Carel Pieter Cronje Human

Respondent

Elizabeth Catharina Maria Human

Respondent

Procedural Posture

Default Judgment Application / Application for Default Judgment and Counter Application

Legal Issues

  1. 1 Whether the second notice of bar served by the Plaintiff was premature and thus a nullity.
  2. 2 Whether the Defendants were properly barred from delivering their plea.
  3. 3 Whether the Plaintiff is entitled to default judgment based on the procedural steps taken.

Ratio Decidendi

The court found that the Plaintiff's second notice of bar was served prematurely, as it was delivered only two court days after the withdrawal of the exception, before the Defendants' twenty-day period to file their plea had expired. The notice of bar was therefore a nullity, and any procedural steps taken pursuant to it, including the application for default judgment, were also nullities. The Defendants were not under bar, and the Plaintiff was not entitled to default judgment. The court further held that the Defendants' response to the premature notice did not amount to waiver of their rights. The counter application was dismissed, and the Defendants were ordered to take steps envisaged...

Court Disposition

Application for default judgment struck off the roll with costs; counter application dismissed; Defendants ordered to deliver plea within five days.

Orders

  • The application for default judgment is struck off the roll with costs.
  • The counter application is dismissed.