Potpale Investments (Pty) Ltd v Mkhize (11711/2014) [2015] ZAKZPHC 55; 2016 (5) SA 96 (KZP) (15 December 2015)

Potpale Investments (Pty) Ltd v Mkhize (11711/2014) [2015] ZAKZPHC 55; 2016 (5) SA 96 (KZP) (15 December 2015)

The court held that the delivery of a Rule 35(12) or (14) notice does not suspend the time period for delivering a plea as set out in Rule 26. The rules do not provide for such automatic suspension, and the defendant was obliged to either plead or apply for an extension of time and to compel production of documents. Since the defendant failed to do either, he was ipso facto barred from pleading after the expiry of the notice period. The plaintiff's application for default judgment was not an irregular step, but was not properly before the court as it had not been dealt with by the registrar. The defendant's interlocutory application to set aside the default judgment application and to...

Citation
[2015] ZAKZPHC 55
Parties
Plaintiff: Potpale Investments (Pty) Ltd; Defendant: Nkanyiso Phumlani Mkhize
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
15 December 2015
Case Number
11711/2014
Procedural Posture
Civil Procedure / Interlocutory Application and Application for Default Judgment
Outcome
The defendant's interlocutory application is dismissed with costs. The plaintiff's application for default judgment is struck off the roll, and the plaintiff is ordered to pay the costs arising from its set down before the court.
Judges
Gorven
Legal Topics
Default Judgment, Notice of Bar, Rule 35 Discovery, Pleading Time Limits, Rule 30a Irregular Steps
Civil Procedure Default Judgment Notice of Bar Rule 35 Discovery Pleading Time Limits Rule 30a Irregular Steps

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 11 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Potpale Investments (Pty) Ltd

Plaintiff

Nkanyiso Phumlani Mkhize

Defendant

Procedural Posture

Civil Procedure / Interlocutory Application and Application for Default Judgment

Legal Issues

  1. 1 Does delivery of a Rule 35(12) or (14) notice suspend the time period for delivering a plea as set out in Rule 26?
  2. 2 Was the plaintiff's application for default judgment an irregular step?
  3. 3 Is the defendant entitled to compel production of documents under Rule 35 before pleading?

Ratio Decidendi

The court held that the delivery of a Rule 35(12) or (14) notice does not suspend the time period for delivering a plea as set out in Rule 26. The rules do not provide for such automatic suspension, and the defendant was obliged to either plead or apply for an extension of time and to compel production of documents. Since the defendant failed to do either, he was ipso facto barred from pleading after the expiry of the notice period. The plaintiff's application for default judgment was not an irregular step, but was not properly before the court as it had not been dealt with by the registrar. The defendant's interlocutory application to set aside the default judgment application and to...

Court Disposition

The defendant's interlocutory application is dismissed with costs. The plaintiff's application for default judgment is struck off the roll, and the plaintiff is ordered to pay the costs arising from its set down before the court.

Orders

  • The interlocutory application brought by the defendant is dismissed with costs, such costs to be taxed on the scale as between attorney and client.
  • The application for default judgment brought by the plaintiff is struck off the roll and the plaintiff is directed to pay the costs arising from its having been set down before the court, such costs to be taxed on the scale as between attorney and client.