Quinn v MQ Finance (PTY) Ltd T/A Marquis Finance and Others (13330/21) [2022] ZAGPJHC 415 (22 June 2022)

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, JOHANNESBURG)

Case no: 13330/21

REPORTABLE: No

OF INTEREST TO OTHER JUDGES: No

REVISED.

22 JUNE 2022

In the matter between:

DAVID ALAN QUINN

APPLICANT

and

MQ FINANCE (PTY) LTD T/A MARQUIS FINANCE

FIRST RESPONDENT

AWBAN INVESTMENT (PTY) LTD

SECOND RESPONDENT

BRIAN RILEY INVESTMENTS (PTY) LTD

THIRD RESPONDENT

KIM RAEMAKERS FOURTH

RESPONDENT

MARLIZE BUYS

FIFTH RESPONDENT

DAWN SMITH

SIXTH RESPONDENT

SHIVA HONNA GOPALAIAH SEVENTH

RESPONDENT

KIM WENTZEL EIGHTH

RESPONDENT

GARY STEFFENS

NINTH RESPONDENT

STANDARD BANK OF SOUTH AFRICA LIMITED

TENTH RESPONDENT

MONICA DAMNEY

ELEVENTH RESPONDENT

Case Summary: APPLICATION IN TERMS OF RULE 30(1) – DELIVERY OF A NOTICE TO EXCEPT IN TERMS OF RULE 23(1)(a)

JUDGMENT

SENYATSI J

[1] This is an opposed application in terms of Rule 30(1) in terms of which the applicant contends that the respondent’s delivery of a notice to except in terms of Rule 23 (1)(a) constitutes an irregular step and should be set aside.

[2] The validity of the applicant’s notice of bar in terms of Rule 26 is not challenged by the respondents. What is in dispute is whether the respondent’s delivery of the notice to except (as opposed to delivering an exception) was valid and interrupted the bar.

[3] The applicant, who is the plaintiff in the main action, issued summons against the respondents, the defendants in the main case, and seeks certain declaratory orders as well as the appointment of a referee with certain powers set out in the particulars of claim. The action is defended.

[4] After summons was served on all the defendants on 18 March 2021, the defendants delivered their notice of intention to defend on 31 March 2021.The following background constitutes common facts:

4.1 the respondents’ plea was due on 3 May 2021. The plea was not delivered by this date;

4.2 the applicant delivered a notice of bar to the respondents in terms of Rule 26 on 5 May 2021;

4.3 the respondents delivered their subsequent exception to the applicant on 3 June 2021.

[5] The applicant contends that notice to except is an irregular step because Rule 23(1) of the Uniform Rules permits two distinct grounds of exception.

5.1 where the particulars of claim are vague and embarrassing; or

5.2 where the particulars of claim lack averments necessary to sustain an action.

[6] The respondents deny the applicant’s contention that the respondents notice in terms of Rule 23(1) is an irregular step and persist with the Exception as being regular step. They contend furthermore that the applicant’s application in terms of Rule 30 is out of time and secondly that the applicant has failed and neglected to establish prima facie, that he has suffered any prejudice whatsoever, from the alleged irregular step taken by the respondents.

[7] The issue for determination is whether notice of bar is an impediment to delivery of exception. Put differently, is it permissible to file a further pleading after a notice of bar is served.

[8] Rule 26 of the Uniform Rules of Court regulates failure to deliver pleadings. The Rule provides as follows:

“Any party who fails to deliver a replication or subsequent pleading within the time stated in Rule 25 shall be ipso facto barred. If any party fails to deliver any other pleading within the time laid down in these Rules or within any extended time allowed in terms thereof, any other party may by notice served upon him requires him to deliver such pleading within five days after the day upon which the notice is delivered. Any party failing to deliver the pleading referred to in the notice within the time therein required or within such further period as may be agreed between the parties, shall be in default of filing such pleading, and ipso facto barred: Provided that for the purposes of this rule the days between 16 December and 15 January, both days inclusive shall not be counted in the time allowed for the delivery of any pleading.”

[9] Rule 27 of the Uniform Rules of Court regulates the extension of time and removal of bar and condonation for non-compliance with the rules. The rule provide as follows:

“(1) In the absence of agreement between the parties the court may upon application on notice and on good cause shown, make an order extending or abridging any time prescribed by these Rules or by an order of court or fixed by an order extending or abridging any time for doing any act or taking any step in connection with any proceedings of any nature, whatsoever upon such terms as to it seems meet.

(2) Any such extension may be ordered although the application therefor is not made until after the expiry of the time prescribed or fixed, and the court ordering such extension may make such order as to it seems meet as to the calling, varying or cancelling the results of the expiry of any time so prescribed or fixed, whether such results flow from the terms of any order or from these Rules.

(3) The court may, on good cause shown, condone any non-compliance with these Rules.”

[10] Rule 23(1)(a) and (b) of the Uniform Rules of Court regulated the exceptions and applications to strike out. It provides as follows: -

“(1) Where any pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defense, as the case may be, the opposing party may, within the period allowed for filing subsequent pleading, deliver an exception thereto and may apply to the registrar to set it down for hearing within 15 days after the delivery of such exception: Provided that-

(a) Where a party intends to take an exception that a pleading is vague and embarrassing such party, shall, by notice, within 10 days of receipt of the pleading, afford the party delivering the pleading, an opportunity to remove the cause of complaints within 15 days of such notice; and

(b) the party excepting, shall within 10 days from the date on which a reply to the notice referred to in paragraph (a) is received, or within 15 days from which such reply is due, deliver the exception.”

[11] As applied to respondents’ response to a summons, the relevant provisions of the rules are these:

(a) In terms of rule 19 the respondents have 10 days from the service of the summons to deliver a notice of intention to defend.

(b) In terms of rule 22(1) they must file their plea (with or without a claim in reconvention) or exception (with or without an application to strike out) within 20 days after serving his notice of intention to defend.

(c) Rule 23 (1) permits two distinct grounds of exception, namely that the particulars of claim are vague and embarrassing or that they lack averments necessary to sustain an action.

(d) If the defendant wishes to except on the first of these grounds (the vague and embarrassing ground rule 23(1)(a) requires him, as a precursor to the exception, to afford his opponent an opportunity of removing the cause of complaint within 15 days. The respondents’ notice to this effect must be served within 10 days of receipt of the combined summons. The latter time limit was introduced by an amendment to rule 23(11) which came into force on 22 November 2019, and is shorter than the period previously allowed.

(e) If the plaintiff replies to the notice and the defendant considers that the reply does not remove the cause of complaint, the defendant (the respondents) must file his exception within 10 days of receipt of the plaintiff’s reply, the defendant (respondents in this case) must file the exception within 15 days from the date on which

such reply was due.

(f) If defendant fails to deliver his ‘pleading’ within the time laid down in the rules, the plaintiff may, in terms of rule 26, serve a notice requiring him to deliver his pleading within five days

after delivery of the notice. If the defendant fails to do so, he is barred and the case proceeds as an unopposed matter unless the defendant succeeds in having the bar lifted in terms of rule 27.

[12] An exception is a ‘pleading’.[1] Like a plea, a properly drawn exception concludes with a prayer for relief.[2]However, notice to except is not a pleading as it does not have any prayer.

[13] The pleading contemplated in rule 26 covers, in the case of a defendant who has failed to plead to particulars of claim, a plea as contemplated in rule 22(1) or an exception as contemplated in rule 22(1) read with rule 23(1). Either of these is a valid response to the Rule 26 notice, and the defendant will not be barred provided it is done within the time limits set out in the rules.

[14] A defendant’s notice in terms of Rule 23(1)(a) affording the plaintiff an opportunity to remove an alleged cause of complaint, as already stated, is not a pleading. It does not contain any relief and does not call for adjudication. If the plaintiff removes the alleged cause of complaint, the notice has served its purpose and receives no further attention.[3] If the plaintiff does not remove the alleged cause of complaint and the defendant files an exception it is the exception, not the pleading notice, that the court adjudicates.

[15] In De Bruyn v Mile 307 (Pty) Ltd and Others[4] the court had to interpret the rule and held that it is clear from the reading of Rule 23(1) of the Rules that the timeframe for delivery of the exception is peremptory. An exception in this regard had to be delivered within 10 days from the expiry of the 15 days’ period referred to in the rule. It thus, follows that failure to comply with the prescribed time frame set out in the rule is not a mere technical formality.

[16] In Spencer Leonard James Mc Nally N.O. and Others v Salvatore Condron and Others[5] the court held as follows on the proposition that intention of intention to except does not constitute all pleading:

“[24] In its notice of exception, the defendant gives notice of its intention to except to plaintiff’s particulars of claim on the ground that the particulars fail to disclose a cause of action, alternatively, that the particulars are vague and embarrassing. The defendants could well have excepted to the plaintiffs’

particulars on the grounds that the particulars do not disclose a cause of action and that the exception would have been a valid

response to the notice of bar delivered on the defendants, but the elected not to do so. The delivery of an exception on the basis, that the particulars of claim lack the averments which are necessary to sustain a claim, would have been a regular step because the notice of bar calls for delivery of a pleading. As has already been pointed out in paragraph [19] above, there is authoritative support to the proposition that an exception is a pleading the delivery of which would have constituted a valid response to the plaintiffs’ notice of bar.

[25] As has already been pointed out, the defendants’ notice of intention to except on the basis of the authorities referred to in paragraph [21] to [22] of this judgment cannot be said to advance these proceedings a stage nearer completion.”

[17] I now deal with the broad principles that have emerged from the case law dealing with the approach to procedural technical points, as the one raised in this matter which can be summarized as follows:

(a) The court does not in general encourage formalism in the application of the rules because the rules are not an end in themselves.[6]

(b) Technical objection based on procedural defects should not be permitted unless the other party would suffers prejudice as a result.[7]

(c) The superior court may in the exercise of their inherent power adjust the rules depending on the circumstances of a give case.[8]

(d) The rules of court are designed to achieve justice and thus courts will in the exercise of their inherent power, relax the application of the rules where strict application thereof may result in substantial injustice.[9] It is apparent from the authorities what courts may do even where no formal application for condonation is made or where such an application is made from the bar.

[18] The above approach whilst correct should, however, be weighed against the underlying purpose of the rules and more importantly the times prescribed therein, whose purpose is to ensure that the court has control over its processes and speedy resolution of disputes.[10]

[19] The Constitutional Court held in Groot Boom v National Prosecuting Authority[11] that the rules of the courts serve the necessary purpose, the primary of which is to ensure that the business of the courts run effectively and efficiently. The Constitutional Court noted with concern the trend that was developing regarding non-compliance with the rules and repeated what it said in eThekwini Municipality v Ingonyama Trust[12] where it said:

“The conduct of litigants in failing to observe the Rules of this Court is unfortunate and should be brought to a halt. This term alone, in eight of the 13 matters set down for hearing, litigants failed to comply with time limits in the rules and directions issued by the Chief Justice. It is unacceptable that this is the position in spite of the warning issued by this Court in the past. In [Van Wyk], this Court warned litigants to stop the trend. The Court said:

'There is now a growing trend for litigants in this court to disregard time limits without seeking condonation. Last term alone, in eight out of ten matters, litigants did not comply with the time limits or the directions setting out the time limits. In some cases litigants either did not apply for condonation at all or if they did, they put up flimsy explanations. This non-compliance with the time limits or the rules of Court resulted in one matter being postponed and the other being struck from the roll. This is undesirable. This practice must be stopped in its tracks."

[20] In the instant case, a point in limine has been raised that an incorrect form of notice has been used that the notice does not advise the respondents of their rights. This point in limine has no legal merit because in his interlocutory notice of motion, the applicant spells out the relief sought which is that the “exception application served on the Applicant on 3 June 2021 is set aside as such exception application is an irregular step in terms of Rule 30(1)(a) of the Uniform Rules of Court.” The respondents proposition about the rights contemplates a situation where there is no ongoing litigation which is not the case in this case.

[21] It is also clear that after the respondents delivered their notice to defend on 31 March 2021, they had 10 days within which to deliver their Rule 23(1)(a) notice, which had expired on 6 April 2021. The plea was due on 3 May 2021 and the plea was not delivered.

[22] The applicant correctly delivered a notice of bar in terms of Rule 26 to the respondents on 5 May 2021 and on the same date the respondents delivered their notice of intention to except to the particulars of claim on 5 May 2021. The application for exception which was already stated, is a pleading was only delivered as already stated on 3 June 2021 well outside of the time limits prescribed. If the respondents wanted to except to the particulars of claim in terms of rule 23(1)(a), the ought to have done so by the 10 April 2021, which was not the case. I say this because the 10th day from receipt of summons expired on 6 April 2021 and only served the exception on 5 June 2021 without applying for condonation of late filing.

[23] Having considered the authorities quoted above, I am of the view that the exception application constituted an irregular step. It was filed out of time without the necessary application for condonation of late filing thereof. It was also filed in the face of the notice of bar, which had not been uplifted in terms of Rule 27. It follows in my view that the application to set the exception application from the ground that it constitutes an irregular step, must succeed.

[24] In the premises the following order is made:

(a) The exception application served on the applicant on 3 June 2021 constitutes an irregular step and is set aside.

(b) The respondents are ordered to pay the cost of suit to the applicant on a party and party scale.

M.L. SENYATSI

JUDGE OF THE HIGH COURT

Heard:

22 November 2021

Judgment:

22 June 2022

Counsel for Applicant:

Adv K. Naidoo

Instructed by:

C de Villiers Attorneys

Counsel for Respondents:

Adv LP de Necker

Instructed by:

Crawford and Associates Attorneys

[1] See Haarhoff v Wakefield 1955 (2) SA 425 (E); Tyulu and Others v Southern Insurance Association 1974 (3) SA 727 (E) at 729 B-D, Icebreakers NO. 83 (Pty) Ltd v Medi Cross Health Care Group (Pty) Ltd [2011] ZAKZDH 15, 2011 (5) SA 130 (KZD).

[2] See Marais v Steyn & ‘n Ander 1975(3) SA 479 (T) at 483 A, Barclays National Bank Ltd v Thompson 1989 (1) SA 547 (A) at 552H

[3] See Hill NO and Another v Brown (3069/20) [2020] ZAWCHC 61 (3 July 2020)

[4] (72427/2013) [2017] ZAGPPHC 286 (2 May 2017) at para 23

[5] (20406/11) [2012] ZAWCHC 17 (9 March 2012).

[6] See Federated Trust Ltd v Botha 1978 (3) SA 645 (A).

[7] See Trans-Africa Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A)

[8] See Khunour and Others v M Fihrer 1982 (3) SA 359.

[9] See Hart and Another v Nelson 2000 (4) SA 368 (ECO)

[10] See De Bruyn v Mile 307 (Pty) Ltd and Others above at 4 para [19]

[11] [2014] 1 BLLR 1 (CC)

[12] [2013] (5) BCLR 497 (CC)