Platinum Mile Investments 229 (Pty) Ltd v Visser (22760/02) [2005] ZAGPHC 34 (29 March 2005)

/SGIN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)DATE:29/3/2005CASE NO:22760/2002REPORTABLEIn the matter between:PLATINUM MILEINVESTMENTS229 (PTY) LTDAPPLICANTAndERNISTUS JOHANNES JACOBUS 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, AJThis is a matter in whichthe applicant seeks an orderto compelthe respondenttocomply with the applicant’s request for further particulars for trial which was served on the respondent on7 April 2004. For the sake of convenience I will refer totheapplicant as thefirstdefendant and the respondent as the plaintiff as they appear in the main action. Prior to service ofthe request for further particulars for trial on7 April 2004thefirstdefendant’s attorneys of record forwarded a copy to therespondent’s attorneys of record bytelefaxon1 April 2004.The following relief is sought in the application to compel:1. The respondent is ordered to comply with the applicant’s request or further particularsfor trial served on the respondentson 7 April 2004, within a time period asmay bedetermined by this honourable court.2.The respondent paythe costsof this application;3. Further and/or alternative relief.The application was set down for4 May 2004on the unopposed roll. This was the same day on which the trial in the main action was to commence. On4 May 2004thefirstdefendant argued that the matter should be postponedand that the plaintiff be ordered to pay the wasted costs occasioned by the postponement and also for the costs of the application for postponement. LEGODI AJ (as he then was) granted an order in terms of which the main action was postponedsine dieand the judgment on costs reserved. Thereafter on25 May 2004judgment was delivered in terms of which the plaintiff was ordered to pay the costs of the postponementand also the wasted costs occasioned by the application for postponement. (I should mention that the date on which the learned judge signedthe typed judgment is dated25 April 2004which clearly appears to be an error and the correct date is25 May 2004as the trial date was4 May 2004and the file notes indicate that the judgment was delivered on25 May 2004.) Thejudgment sets out in detail the background leading to the application to compel further particularsfor trial and other issues and I will not repeat it here as it is on record. The application to compel the furnishing of further particulars for purposes of trial, which was postponedsine dieon4 May 2004was then re-enrolled on the opposed motion court roll by plaintiff’s attorneys for21 September 2004which was then argued before me.From the plaintiff’s counsel’s headsof argument it appears that the reason why the plaintiff chose to re-enrol the matter which was originally launched by thefirstdefendant was for the purpose of requesting the court to dismiss the application to compel further particulars for the purposes of trial and to order thefirstdefendant to pay the costs of the application on the scale as between attorney and client. I was also informed by plaintiff’s counsel that the judgment delivered by LEGODI AJ was the subject of request for leave to appeal andas atdate of this judgment I am not aware of the outcome of that application.It is common cause that to date the plaintiff has not responded to thefirstdefendant’s request for further particulars for trial in terms of rule 21 of the rulesof this court. As I understand it the plaintiff is of the view that he is not obliged to reply to the request on a number of grounds. Firstly, he alleges that he did not view thefirstdefendant’s request in the light of rule 21 as no specific reference was made in the request that it was in terms of rule 21. Secondly, that in any event the plaintiff had provided the answers to the questions contained in thefirstdefendant’s rule 21 notice in the form of a pretrial minute. However, it is also common cause that the pretrial conference was not attended by thefirstdefendant’s attorneys and the background in this regard is also sketched in LEGODIAJ’s judgment. Thirdly, it was alleged that the request for further particulars for trial was viewed by the plaintiff as a pretrial agenda in terms of rule 37. Fourthly, the plaintiff alleges that the questions contained in thefirstdefendant’s request have been answered in the pleadings. Fifthly, the plaintiff allegesthat the request for further particulars was not signed by counsel or an attorney with a right of appearance.Plaintiff filed an answering affidavit to the application to compel further particulars for trial and, before the defendant could file a replying affidavit, set the matter down for hearing. I should mention at this stage that the main action was preceded by an application for adeclaratorthat certain piece of land wasacquired by theplaintiffbyacquisitiveprescription,isthereforeowned by theplaintiffand also an order declaring that theplaintiffis entitled as against payment of all costs and charges occasioned thereby to transferthesaid piece of land intoplaintiff’sname. The application was opposed by the firstdefendantand the matter was then referred to trial by VAN DER BYL AJ on12 March 2003. The following order was made:1. The matter is referred to trial.2. The notice of motion shall stand as a simple summons.3. The first respondent’s answering affidavit shall be regarded as a notice of intention to defend.4. The applicant is granted leave to file a declaration within15days from date of this order.5. That the normal rules of court relating to pleadings and other processing actions applying this matter hence forth.6. And lastly that the costs of this matter shall be reserved for determination at a trial, including the costs incurred in respect of the opposition of the referral today.Plaintiff then filed his declaration and first defendant its plea whereafter the pleadings having closed, the first defendant requested the further particulars for purposes of trial. One of the reasons submitted by plaintiff’s counsel for plaintiff’s failure to furnish an answer to the request for further particulars for trial was that thefirstdefendant’s request was not based on the plaintiff’s declaration but on allegations that the plaintiff had made in his founding affidavit in support of the main application which was referred to trial. It was further submitted that many of the answers to the questions in the request were in the main application, others were irrelevant, others came down to evidence which thefirstdefendant was seeking and others were nothing other than crossexamination. It was further submitted by plaintiff’s counsel that the reason plaintiff did not regard the request as been a request in terms of rule 21 and rather that it was a request for particulars in terms of rule 37(3) is thatall questions that are asked at a pre-trial conference relating to the merits are nothing other than a request for particulars for the purposes of trial. I will revert to this later.Plaintiff’scounsel further submitted that before thefirstdefendant launched the present application it was already in possession of answers to its request for further particulars for purposes of trialbecause the plaintiff had already prepared a draft pretrial minute,which was in effect nothing other than an agenda for a pretrial,which had been sent to the defendant on 28 April 2004,i.e.before the trial date of 4 May 2004. It was argued that accordingly the defendant was already in possession of the answers or particulars that it sought.Plaintiff then held a pretrial conference in the absence of thefirstdefendant and the details or the background leading up to the holding of the pretrial without thefirstdefendant being present are also set out in LEGODIAJ’s judgment and I will therefore not repeat it here. Counsel for plaintiff submitted that the minutes of the pretrial conference contained the answers to thefirstdefendant’s request for further particulars and these minutes had been sent or delivered to thefirstdefendant on30 April 2004.Rule 21of the Uniform Rules of Court provides:“(1) ...(2)After the close of pleadings any party may, not less than twenty days before trial, deliver a notice requesting only such further particulars as are strictly necessary to enable him to prepare for trial. Such request shall be complied with within ten days of receipt thereof.(3) The request for further particulars for trialandthe reply thereto shall, save where the partiesarelitigating in person, be signed by both an advocate and an attorney or, in the case of an attorney who, under section 4(2) of the Rights of Appearance in Courts Act, 1995 (Act 62 of 1995), has the right of appearance in the Supreme Court, only by such attorney.(4) If the party requested to furnish any particulars as aforesaid fails to deliver them timeously or sufficiently, the party requesting the same may apply to court for an order for their delivery or for the dismissal of the action or the striking out of the defence, whereupon the court may make such orderas to it seems meet.(5) The court shall at the conclusion of the trialmero motuconsider whether the further particulars were strictly necessary, and shall disallow all costs of and flowing from any unnecessary request or reply,orboth, and may order either party to pay the costs thereby wasted, on an attorney and client basis or otherwise.”Inmy view the submissions by the plaintiff forhisfailure to provide a formal answer to thefirstdefendant’s request for further particulars for trial cannot be sustained. Subrule (5) of rule 21 makes it clear that the court shallmero motuconsider whether the request for further particulars were strictly necessary and may even make a punitive costs order if it finds that the request was unnecessary. To my mind, plaintiff should have furnished a reply and thereafter at the conclusion of the trial request the court to make an appropriate order for costs. Plaintiff has taken upon himself the functionof determining whether the defendant’s request for further particulars were strictly necessary which function should have been left to the court in terms of subrule (5).The argument that it could not be determined from the request whether it was a request for further particulars for purposes of trial in terms of rule 21 because no reference to rule 21 was made in the requestcan also not be sustained. The heading is clear and it states:“Request for further particulars for purposes of trial.”It isdisingenuousto suggest that it could not be determined whether this was a request in terms of rule 21.I turn then to the argument that only the defendant’s attorney had signed the request and counsel had not signed it. With effect from1 July 1996provision was made for the signing of request for further particulars and replies thereto by attorneys who have been granted the right of appearance in the High Court in terms of section 4 of the Right of Appearance in Courts Act 62 of 1995. In my view, if the plaintiff’s attorney had any doubt about thefirstdefendant’s attorneys’ authority to sign the request, a simple enquiry by letter would have resolved the issue. In any eventfrom the papers it is clear that the attorney for the defendant has the required authority in terms of the Right of AppearanceAct.That the plaintiff considered the request forfurther particulars for trialas an agenda for the holding of a pretrial isalso disingenuous,given the heading to the request which makes it clear that it is a request for further particulars for trial and not an agenda or questions to be asked at the pretrial conference.Lastly, I turn to plaintiff’s submission that the information requested in the request for further particulars for purposes of trial was already in the possession offirstdefendant’s attorneys. In my view, the plaintiff should have replied to the request and state that specifically inhisreply. He could have theninvokedthe provisions of rule 21(5)at the close of the trial. I accordingly make the following order:1. The plaintiff is ordered to furnish a reply to thefirstdefendant’s request for further particulars for purposes of trial within ten days fromdate ofservice of this order upon the plaintiff’s attorneysby first defendant’s attorneys;2. The costs of the application to compel further particulars for purposes of trial be paid by the plaintiff.N RANCHODACTING JUDGE OF THE HIGH COURT22760/2002Heard on: 04/12/2002For theApplicant: Adv A B RossouwInstructed by: Ben Bekker AttFor the Respondents: Adv L G van TonderInstructed by: L G Mostert & CoDate of Judgment: 29/03/2005

/SG

IN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)DATE:29/3/2005CASE NO:22760/2002

IN THE HIGH COURT OF

SOUTH AFRICA

(

TRANSVAAL

PROVINCIAL DIVISION)

DATE:

29/3/2005

CASE NO:

22760/2002

REPORTABLE

In the matter between:

PLATINUM MILE

INVEST

MENTS

229 (PTY) LTD

APPLICANT

And

ERNISTUS JOHANNES JACOBUS VISSER

RESPONDENT

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

JUDGMENT

RANCHOD, AJ

This is a matter in whichthe applicant seeks an orderto compelthe respondenttocomply with the applicant’s request for further particulars for trial which was served on the respondent on7 April 2004. For the sake of convenience I will refer totheapplicant as thefirstdefendant and the respondent as the plaintiff as they appear in the main action. Prior to service ofthe request for further particulars for trial on7 April 2004thefirstdefendant’s attorneys of record forwarded a copy to therespondent’s attorneys of record bytelefaxon1 April 2004.The following relief is sought in the application to compel:

This is a matter in which

the applicant seeks an order

to compel

the respond

ent

to

comply with the applicant

’

s request for further particulars for trial which was served on the respondent on

7 April 2004

. For the sake of convenience I will refer to

the

applicant as the

first

defendant and the respondent as the plaintiff as they appear in the main action. Prior to service of

the request for further particulars for trial on

defendant’

s attorneys of record forwarded a copy to the

respondent

s attorneys of record by

telefax

on

1 April 2004

.The following relief is soug

ht in the application to compel:

1. The respondent is ordered to comply with the applicant’s request or further particularsfor trial served on the respondentson 7 April 2004, within a time period asmay bedetermined by this honourable court.

1. The respondent is ordered to comply with the applicant’s request or further particular

s

for trial served on the respondent

on 7 April 2004, within a time period as

may be

determined by this honourable court.

2.The respondent paythe costsof this application;3. Further and/or alternative relief.

2.

The respondent pa

y

the costs

of this application

;3. F

urther and/or alternative relief.

The application was set down for4 May 2004on the unopposed roll. This was the same day on which the trial in the main action was to commence. On4 May 2004thefirstdefendant argued that the matter should be postponedand that the plaintiff be ordered to pay the wasted costs occasioned by the postponement and also for the costs of the application for postponement. LEGODI AJ (as he then was) granted an order in terms of which the main action was postponedsine dieand the judgment on costs reserved. Thereafter on25 May 2004judgment was delivered in terms of which the plaintiff was ordered to pay the costs of the postponementand also the wasted costs occasioned by the application for postponement. (I should mention that the date on which the learned judge signedthe typed judgment is dated25 April 2004which clearly appears to be an error and the correct date is25 May 2004as the trial date was4 May 2004and the file notes indicate that the judgment was delivered on25 May 2004.) Thejudgment sets out in detail the background leading to the application to compel further particularsfor trial and other issues and I will not repeat it here as it is on record. The application to compel the furnishing of further particulars for purposes of trial, which was postponedsine dieon4 May 2004was then re-enrolled on the opposed motion court roll by plaintiff’s attorneys for21 September 2004which was then argued before me.From the plaintiff’s counsel’s headsof argument it appears that the reason why the plaintiff chose to re-enrol the matter which was originally launched by thefirstdefendant was for the purpose of requesting the court to dismiss the application to compel further particulars for the purposes of trial and to order thefirstdefendant to pay the costs of the application on the scale as between attorney and client. I was also informed by plaintiff’s counsel that the judgment delivered by LEGODI AJ was the subject of request for leave to appeal andas atdate of this judgment I am not aware of the outcome of that application.It is common cause that to date the plaintiff has not responded to thefirstdefendant’s request for further particulars for trial in terms of rule 21 of the rulesof this court. As I understand it the plaintiff is of the view that he is not obliged to reply to the request on a number of grounds. Firstly, he alleges that he did not view thefirstdefendant’s request in the light of rule 21 as no specific reference was made in the request that it was in terms of rule 21. Secondly, that in any event the plaintiff had provided the answers to the questions contained in thefirstdefendant’s rule 21 notice in the form of a pretrial minute. However, it is also common cause that the pretrial conference was not attended by thefirstdefendant’s attorneys and the background in this regard is also sketched in LEGODIAJ’s judgment. Thirdly, it was alleged that the request for further particulars for trial was viewed by the plaintiff as a pretrial agenda in terms of rule 37. Fourthly, the plaintiff alleges that the questions contained in thefirstdefendant’s request have been answered in the pleadings. Fifthly, the plaintiff allegesthat the request for further particulars was not signed by counsel or an attorney with a right of appearance.Plaintiff filed an answering affidavit to the application to compel further particulars for trial and, before the defendant could file a replying affidavit, set the matter down for hearing. I should mention at this stage that the main action was preceded by an application for adeclaratorthat certain piece of land wasacquired by theplaintiffbyacquisitiveprescription,isthereforeowned by theplaintiffand also an order declaring that theplaintiffis entitled as against payment of all costs and charges occasioned thereby to transferthesaid piece of land intoplaintiff’sname. The application was opposed by the firstdefendantand the matter was then referred to trial by VAN DER BYL AJ on12 March 2003. The following order was made:1. The matter is referred to trial.2. The notice of motion shall stand as a simple summons.

The application was set down for

4 May 2004

on the unopposed roll. This was the same day on which the trial in the main action was to commence. On

defendant argued that the matter should be postponed

and that the plaintiff be ordered to pay the wasted costs occasioned by the postponement and also for the costs of the application for postponement. LEGODI AJ (as he then was) granted an order in terms of which the main action was postponed

sine die

and the judgment on costs reserved. Thereafter on

25 May 2004

judgment was delivered in terms of which the plaintiff was ordered to pay the costs of the postponement

and also the wasted costs occasioned by the application for postponement. (I should mention that the date on which the learned judge sign

ed

the typed judgment is dated

25 April 2004

which clearly appears to be an error and the correct date is

as the trial date was

and the file notes indicate that the judgment was delivered on

.) The

judgment sets out in detail the background leading to the application to compel further particulars

for trial and other issues and I will not repeat it here as it is on record. The application to compel the furnishing of further particulars for purposes of trial, which was postponed

was then re-enrolled on the opposed motion court roll by plaintiff’s attorneys for

21 September 2004

which was then argued before me.

From the plaintiff’s counsel’s heads

of argument it appears that the reason why the plaintiff chose to re-

enrol the matter which was originally launched by the

defendant was for the purpose of requesting the court to dismiss the application to compel further particulars for the purposes of trial and to order the

defendant to pay the costs of the application on the scale as between attorney and client. I was also informed by plaintiff’s counsel that the judgment delivered by LEGODI AJ was the subject of request for leave to appeal and

as a

t

date of this judgment I am not aware of the outcome of that application.

It is common cause that to date the plaintiff has not responded to the

defendant’s request for further particulars for trial in terms of rule 21 of the rule

of this court. As I understand it the plaintiff is of the view that he is not obliged to reply to the request on a number of grounds. Firstly, he alleges that he did not view the

defendant’s request in the light of rule 21 as no specific reference was made in the request that it was in terms of rule 21. Secondly, that in any event the plaintiff had provided the answers to the questions contained in the

defendant’s rule 21 notice in the form of a pretrial minute. However, it is also common cause that the pretrial conference was not attended by the

defendant’s attorneys and the background in this regard is also sketched in LEGODI

A

J’s judgment. Thirdly, it was alleged that the request for further particulars for trial was viewed by the plaintiff as a pretrial agenda in terms of rule 37. Fourthly, the plaintiff alleges that the questions contained in the

defendant’s request have been answered in the pleadings. Fifthly, the plaintiff allege

that the request for further particulars was not signed by counsel or an attorney with a right of appearance.

Plaintiff filed an answering affidavit to the application to compel further particulars for trial and, before the defendant could file a replying affidavit, set the matter down for hearing. I should mention at this stage that the main action was preceded by an application for a

declarator

that certain piece of land was

acquired by the

plaintiff

by

acquisitive

prescription

,

is

therefore

owned by the

and also an order declaring that the

is entitled as against payment of all costs and charg

es occasioned thereby to transfe

r

said piece of land into

plaintiff’s

name. The application was opposed by the first

defendant

and the matter was then referred to trial by VAN DER BYL AJ on

12 March 2003

. T

he following order was made:1. The matter is referred to trial.2. The notice of motion shall stand as a simple summons.

3. The first respondent’s answering affidavit shall be regarded as a notice of intention to defend.4. The applicant is granted leave to file a declaration within15days from date of this order.5. That the normal rules of court relating to pleadings and other processing actions applying this matter hence forth.

3. The first respondent’s answering affidavit shall be regarded as a notice of intention to defend.4. The applicant is granted leave to file a declaration within

15

days from date of this order.5. That the normal rules of court relating to pleadings and other processing actions applying this matter hence forth.

6. And lastly that the costs of this matter shall be reserved for determination at a trial, including the costs incurred in respect of the opposition of the referral today.

6. And lastly that the costs of this matter shall be reserved for determination at a trial, including the costs incurred in respect of the opposition of th

e referral today.

Plaintiff then filed his declaration and first defendant its plea whereafter the pleadings having closed, the first defendant requested the further particulars for purposes of trial. One of the reasons submitted by plaintiff’s counsel for plaintiff’s failure to furnish an answer to the request for further particulars for trial was that thefirstdefendant’s request was not based on the plaintiff’s declaration but on allegations that the plaintiff had made in his founding affidavit in support of the main application which was referred to trial. It was further submitted that many of the answers to the questions in the request were in the main application, others were irrelevant, others came down to evidence which thefirstdefendant was seeking and others were nothing other than crossexamination. It was further submitted by plaintiff’s counsel that the reason plaintiff did not regard the request as been a request in terms of rule 21 and rather that it was a request for particulars in terms of rule 37(3) is thatall questions that are asked at a pre-trial conference relating to the merits are nothing other than a request for particulars for the purposes of trial. I will revert to this later.Plaintiff’scounsel further submitted that before thefirstdefendant launched the present application it was already in possession of answers to its request for further particulars for purposes of trialbecause the plaintiff had already prepared a draft pretrial minute,which was in effect nothing other than an agenda for a pretrial,which had been sent to the defendant on 28 April 2004,i.e.before the trial date of 4 May 2004. It was argued that accordingly the defendant was already in possession of the answers or particulars that it sought.

Plaintiff then filed his declaration and first defendant its plea whereafter the pleadings having closed, the first defendant requested the further particulars for purposes of trial. One of the reasons submitted by plaintiff’s counsel for plaintiff’s failure to furnish an answer to the request for further particulars for trial was that the

defendant’s request was not based on the plaintiff’s declaration but on allegations that the plaintiff had made in his founding affidavit in support of the main application which was referred to trial. It was further submitted that many of the answers to the questions in the request were in the main application, others were irrelevant, others came down to evidence which the

defendant was seeking and others were nothing other than crossexamination. It was further submitted by plaintiff’s counsel that the reason plaintiff did not regard the request as been a request in terms of rule 21 and rather that it was a request for particulars in terms of rule 37(3) is that

all questions that are asked at a pre-trial conference relating to the merits are nothing other than a request for particulars for the purposes of trial. I will revert to this later.

P

laintiff’s

counsel further submitted that before the

defendant launched the present application it was already in possession of answers to its request for further particulars for purposes of trial

because the plaintiff had already prepared a draft pretrial minute

which was in effect nothing other than an agenda for a pretrial

which had been sent to the defendant on 28 April 2004

i

.

e

before the trial date of 4 May 2004. It was argued that accordingly the defendant was already in possession of the answers or particulars that it sought.

Plaintiff then held a pretrial conference in the absence of thefirstdefendant and the details or the background leading up to the holding of the pretrial without thefirstdefendant being present are also set out in LEGODIAJ’s judgment and I will therefore not repeat it here. Counsel for plaintiff submitted that the minutes of the pretrial conference contained the answers to thefirstdefendant’s request for further particulars and these minutes had been sent or delivered to thefirstdefendant on30 April 2004.Rule 21of the Uniform Rules of Court provides:

Plaintiff then held a pretrial conference in the absence of the

defendant and the details or the background leading up to the holding of the pretrial without the

defendant being present are also set out in LEGODI

J’s judgment and I will therefore not repeat it here. Counsel for plaintiff submitted that the minutes of the pretrial conference contained the answers to the

defendant’s request for further particulars and these minutes had been sent or delivered to the

defendant on

30 April 2004

Rule 21

of the Uniform Rules of Court provides:

“(1) ...

“

(1) ...

(2)After the close of pleadings any party may, not less than twenty days before trial, deliver a notice requesting only such further particulars as are strictly necessary to enable him to prepare for trial. Such request shall be complied with within ten days of receipt thereof.

(2)

After the close of pleadings any party may, not less than twenty days before trial, deliver a notice requesting only such further particulars as are strictly necessary to enable him to prepare for trial. Such request shall be complied with within ten days of receipt thereof

(3) The request for further particulars for trialandthe reply thereto shall, save where the partiesarelitigating in person, be signed by both an advocate and an attorney or, in the case of an attorney who, under section 4(2) of the Rights of Appearance in Courts Act, 1995 (Act 62 of 1995), has the right of appearance in the Supreme Court, only by such attorney.(4) If the party requested to furnish any particulars as aforesaid fails to deliver them timeously or sufficiently, the party requesting the same may apply to court for an order for their delivery or for the dismissal of the action or the striking out of the defence, whereupon the court may make such orderas to it seems meet.

(3) The request for further particulars for trial

and

the reply thereto shall, save where the parties

are

litigating in person, be signed by both an advocate and an attorney or, in the case of an attorney who, under section 4(2) of the Rights of Appearance in Courts Act, 1995 (Act 62 of 1995), has the right of appearance in the Supreme Court, only by such attorney.(4) If the party requested to furnish any particulars as aforesaid fails to deliver them timeously or sufficiently, the party requesting the same may apply to court for an order for their delivery or for the dismissal of the action or the striking out of the defence

, whereupon the court may make such order

as to it seems meet.

(5) The court shall at the conclusion of the trialmero motuconsider whether the further particulars were strictly necessary, and shall disallow all costs of and flowing from any unnecessary request or reply,orboth, and may order either party to pay the costs thereby wasted, on an attorney and client basis or otherwise.”

(5) The court shall at the conclusion of the trial

mero motu

consider whether the further particulars were strictly necessary, and shall disallow all costs of and flowing from any unnecessary request or reply,

or

both, and may order either party to pay the costs thereby wasted, on an attorney and client basis or otherwise.”

Inmy view the submissions by the plaintiff forhisfailure to provide a formal answer to thefirstdefendant’s request for further particulars for trial cannot be sustained. Subrule (5) of rule 21 makes it clear that the court shallmero motuconsider whether the request for further particulars were strictly necessary and may even make a punitive costs order if it finds that the request was unnecessary. To my mind, plaintiff should have furnished a reply and thereafter at the conclusion of the trial request the court to make an appropriate order for costs. Plaintiff has taken upon himself the functionof determining whether the defendant’s request for further particulars were strictly necessary which function should have been left to the court in terms of subrule (5).The argument that it could not be determined from the request whether it was a request for further particulars for purposes of trial in terms of rule 21 because no reference to rule 21 was made in the requestcan also not be sustained. The heading is clear and it states:“Request for further particulars for purposes of trial.”It isdisingenuousto suggest that it could not be determined whether this was a request in terms of rule 21.I turn then to the argument that only the defendant’s attorney had signed the request and counsel had not signed it. With effect from1 July 1996provision was made for the signing of request for further particulars and replies thereto by attorneys who have been granted the right of appearance in the High Court in terms of section 4 of the Right of Appearance in Courts Act 62 of 1995. In my view, if the plaintiff’s attorney had any doubt about thefirstdefendant’s attorneys’ authority to sign the request, a simple enquiry by letter would have resolved the issue. In any eventfrom the papers it is clear that the attorney for the defendant has the required authority in terms of the Right of AppearanceAct.That the plaintiff considered the request forfurther particulars for trialas an agenda for the holding of a pretrial isalso disingenuous,given the heading to the request which makes it clear that it is a request for further particulars for trial and not an agenda or questions to be asked at the pretrial conference.Lastly, I turn to plaintiff’s submission that the information requested in the request for further particulars for purposes of trial was already in the possession offirstdefendant’s attorneys. In my view, the plaintiff should have replied to the request and state that specifically inhisreply. He could have theninvokedthe provisions of rule 21(5)at the close of the trial. I accordingly make the following order:

In

my view the submissions by the plaintiff for

his

failure to provide a formal answer to the

defendant’s request for further particulars for trial cannot be sustained. Subrule (5) of rule 21 makes it clear that the court shall

consider whether the request for further particulars were strictly necessary and may even make a punitive costs order if it finds that the request was unnecessary. To my mind, plaintiff should have furnished a reply and thereafter at the conclusion of the trial request the court to make an appropriate order for costs. Plaintiff has taken upon himself the function

of determining whether the defendant’s request for further particulars were strictly necessary which function should have been left to the court in terms of subrule (5).The argument that it could not be determined from the request whether it was a request for further particulars for purposes of trial in terms of rule 21 because no reference to rule 21 was made in the request

can also not be sustained. The heading is clear and it states:“Request for further particulars for purposes of trial.”It is

disingenuous

to suggest that it could not be determined whether this was a request in terms of rule 21.I turn then to the argument that only the defendant’s attorney had signed the request and counsel had not signed it. With effect from

1 July 1996

provision was made for the signing of request for further particulars and replies thereto by attorneys who have been granted the right of appearance in the High Court in terms of section 4 of the Right of Appearance in Courts Act 62 of 1995. In my view, if the plaintiff’s attorney had any doubt about the

defendant’s attorneys’ authority to sign the request, a simple enquiry by letter would have resolved the issue. In any event

from the papers it is clear that the attorney for the defendant has the required authority in terms of the Right of Appearance

Act

.That the plaintiff considered the request for

further particulars for trial

as an agenda for the holding of a pretrial is

also disingenuous,

given the heading to the request which makes it clear that it is a request for further particulars for trial and not an agenda or questions to be asked at the pretrial conference.Lastly, I turn to plaintiff’s submission that the information requested in the request for further particulars for purposes of trial was already in the possession of

defendant’s attorneys. In my view, the plaintiff should have replied to the request and state that specifically in

reply. He could have then

invoked

the provisions of rule 21

(5)

at the close of the trial. I accordingly make the following order:

1. The plaintiff is ordered to furnish a reply to thefirstdefendant’s request for further particulars for purposes of trial within ten days fromdate ofservice of this order upon the plaintiff’s attorneysby first defendant’s attorneys;

1. The plaintiff is ordered to furnish a reply to the

defendant’s request for further particulars for purposes of trial within ten days from

date of

service of this order upon the plaintiff’s attorneys

by first defendant’s attorneys;

2. The costs of the application to compel further particulars for purposes of trial be paid by the plaintiff.

N RANCHODACTING JUDGE OF THE HIGH COURT22760/2002

N RANCHOD

ACTING JUDGE OF THE HIGH COURT

Heard on

: 04/12/2002

For the

Applicant

: Adv A B Rossouw

Instructed by

: Ben Bekker Att

For the Respondents

: Adv L G van Tonder

: L G Mostert & Co

Date of Judgment

: 29/03/2005