Regent Insurance Company Ltd v Flinkdink Transport and Another (21706/2011) [2015] ZAGPPHC 726 (11 September 2015)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DATE: 11/9/2015

CASE NO. 21706/2011

REPORTABLE:NO

OF INTEREST TO OTHEl'I JUDGES: YES

In the matter between

REGENT INSURANCE COMPANY LTD APPLICANT/PLAINTIFF

and

FLINKDINK TRANSPORT

1st RESPONDENT/1st DEFENDANT

FRANCOIS JACOBUS SWANEPOEL

2nd RESPONDENT/2nd DEFENDANT

JUDGMENT

MOOSA AJ.

[1] The plaintiff/ applicant Regent Insurance Company Ltd, instituted an action against Flinkdink Transport CC the 1st defendant I 1st respondent and Francois Jacobus Swanepoel, the 2"d defendant/ 2"d respondent jointly and severally for payment of the sum of R 742 440, 00 together with interest at a rate of 15% per annum from °'1 5 April 2005, alternatively payment of the said sum against the 1st defendant only, further alternatively an order declaring the plaintiff is entitled to take

possession of MAN 5200 TRUCK TRACTOR with engine number 398038403 B2C1 and chassis number

AAT812407PX10249.

[2] This action was defended and a plea was filed by the defendants on 11 July 2011. In April 2014 the plaintiff amended it's particulars of claim. On 23 June 2014 the plaintiff then requested further particulars for the purpose of trial. In view of the defendants' failure to favour the further particulars as sought, the plaintiff then brought an application to compel the defendants to comply with such request. Sometime during September 2014 the defendants previous attorneys withdrew and its present attorneys of record were appointed.

[3] On 18 October 2014 an Order was granted by the Honourable Justice Rabie compelling the defendants to reply to the plaintiff's request for further particulars within 20 days from the date when such Order was granted. The defendants had to comply with the plaintiff's request for the further particulars by 5 November 2014. Despite the lapse of the 20 day period the defendants failed and/ or refused to adhere to the Order.

[4] Subsequent to such failure by the defendants, the plaintiff instituted an application in terms of rule 21(4) for the striking out of the defendants' defence. Herein referred-to as the striking out application. The defendants thereafter on 18 December 2014 filed a document under the heading filing of opposing affidavit to the striking out application. This document is manifestly a notice of motion and encompassing a counter application.

[5] The plaintiff in turn, on 25 March 2015 filed a replying affidavit and on 10 April 2015 the defendants then filed a rule 6(5) application as well as a notice of intention to amend their counter application. On 15 April 2015 the plaintiff delivered its objection to the defendants' proposed amendment to the counter application. On 23 April 2015 the plaintiff filed an affidavit opposing the defendants' application to file a further affidavit.

[6] On 29 April 2015 despite the plaintiff's objection, the defendants launched the amendment application. On 13 May 2015 the plaintiff then filed its affidavit opposing the amendment application. An application in terms of rule 6(5) (e) was brought by the defendants in terms of which they sought leave to file a further affidavit in the striking out application. This application is referred to as the rule 6(5) (e) application.

[7] The plaintiff thereafter filed its objection to the defendants' proposed amendment to the counter application and on 23 April 2015 served and filed an affidavit opposing the defendants' application to file a further affidavit. The defendants then launched the amendment application and which application was opposed by the plaintiff, which in turn then filed an affidavit on 13 May 2015, opposing such application. This application is referred to as the amendment application.

[8] The three opposed applications referred to above, are pending before this court, all of which are ancillary to an action instituted by the plaintiff against the defendants and under the same case number.

[9] Rule 21(4) provides essentially that if the party is called upon to furnish any particulars, fails to deliver same timeously or sufficiently, the requesting party may apply to court for an order for the delivery or for the dismissal of the action or the striking out of the defence of the defaulting party, whereupon the court may make such order as it deems meet.

[10] A court will only strike out the defence or claim if it is found that the defendants in casu has deliberately and contemptuously disobeyed the order. The following three (3) points warrant mention with regards to the ambit of

rule 21(4):-

[10.1] the rule applies not only where there has been a complete failure to furnish particulars, but also in the ostensibly less serious instances namely, failing to comply timeously or sufficiently;

[10.2] secondly, it is clear that the ultimate remedy for the dismissal of an action or the striking out of a defence is a drastic remedy;

[10.3] thirdly, it is clear that the power to grant such a remedy is discretionary and that the discretion must be exercised judicially.

[11] In terms of the striking out application the plaintiff sought an order as follows:-

[11.1] that judgment be granted in favour of the plaintiff in the sum of R742 440.00 against the1st and 2nd defendants jointly and severally, the one to pay the other to be absolved;

[11.2] the defendants be ordered to pay interest on the amount of R742 440, 00 at the rate of 15.5% per annum from 15 April 2005 until date of final payment;

[11.3] pay the costs of the application as well as the cost of the action.

[12] With regard to the striking out application, the defendants raised the following defences; that the request for further particulars was filed:-

[12.1] subsequent to the plaintiff amending its particulars of claim; but

[12.2] before the plaintiff had made discovery; and

[12.3] before the defendants had pleaded to the amended particulars of claim.

[13] Therefore in view of all of the above the further particulars requested are no longer relevant and which is referred to as the first defence. I find it difficult to reconcile this on the basis that, the defendants' counsel G. F. Ackermann submitted to the court that the plaintiff never took issue with, why it is not incumbent to answer the request for further particulars. Since the applicant only insisted that there should be adherence to the Order of the Honourable Justice Rabie. The defendants looses sight of the fact that adherence to a Court Order supersedes any and all other issues. Whether the further particulars are no longer relevant or not, is not a valid opposition. Of relevance is the adherence and obedience of a Court Order. This is the principle of legality, an incident of the rule of law.

[14] The further submission made is that, the defendants have always contended that the plaintiff will be entitled to file a second request for further particulars, after the defendants filed their amended plea and counterclaim, subsequent to the filing of the contract of insurance. It is so that the Order of the Honourable Rabie J does not have the effect of a final judgment and may be varied by the court on good cause shown. I have difficulty in finding any good cause shown on the part of either of the defendants. Therefore, I cannot reconcile this submission by the defendants regarding this line of defence.

[15] Insofar as it concerns the second defence the defendants can only file a consequential amendment to their plea, once the plaintiff has discovered which is in turns necessitated by the plaintiff's alleged non-compliance with the provision of Rule 18(6) in preparing its particulars of claim. This amendment seems to be the pivotal turning point in the defendants' refusal to answer to the plaintiff's request for further particulars. The attachment of an insurance contract, when there in an entitlement of indemnification in all its respects,

comes into force when the particulars of claim are couched in contractual terms and not on fraudulent misrepresentation as in casu.

[16] In the first particulars of claim the plaintiff's material allegations are that; it had insured certain vehicles of the 151 defendant, from 9 March 2005 until 15 April 2005. The 1st defendant misrepresented that the insured vehicles had been hijacked on 3 March 2005 and the vehicles that were hijacked were not the vehicles insured and the hijacked vehicles were subsequently recovered and returned to the 1st defendant.

[17] In the subsequent amended particulars of claim the plaintiff avers that; it had insured certain vehicles of the 1st defendant and from 9 March 2005 until 15 April 2005, the 1st defendant misrepresented to it that the insured vehicles had been hijacked on 3 March 2005. In fact the vehicles that were allegedly hijacked were not hijacked at all but were in the 1st defendant's possession albeit discreetly with a false registration number.

[18] Therefore both sets of allegations are the same and essentially the following:[18.1] it had insured certain vehicles of the 1st defendant.

[18.2] from 9 March 2005 until 15 April 2005 the 1st defendant misrepresented to the plaintiff that the insured vehicles had been hijacked on 3 March 2005.

[19] In fact the vehicles that were insured and which the 1st defendant represented to the plaintiff were hijacked, were not hijacked at all.

[20] On the strength of the aforesaid and in each of its particulars of claim the plaintiff alleges that consequent upon the misrepresentation of the 1st defendant it suffered damages as it paid out an amount of R742, 440.00 pursuant to four agreements of loss which it entered into with the 1st defendant in respect of the insured vehicles, acting upon the said fraudulent misrepresentation.

[21] It is of importance to note that:

[21.1] the request for further particulars comprises 5 paragraphs.

[21.2] paragraph 5 of the initial particulars of claim is essentially identical to paragraph 5 of the amended particulars of claim.

[21.3] paragraph 7 of the initial particulars of claim is essentially identical to paragraph 7 of the amended particulars of claim.

[21.4] paragraph 8 of the initial particulars of claim is essentially identical to paragraph 12 of the amended particulars of claim.

[21.5] paragraph 11 of the initial particulars of claim is essentially identical to paragraph 11 of the amended particulars of claim.

[21.6] paragraph 13 of the initial particulars of claim is essentially identical to paragraph 9 of the amended particulars of claim.

[21.7] the only paragraph of the plaintiff's request for further particulars that was affected by the amendment is paragraph 4 thereof.

[22] The particulars sought from the 1st defendant are as relevant under the amended particulars of claim as they were under the previous particulars of claim. At no stage did the defendants challenge the relevance for purposes of trial of the particulars sought, but contend that the request for further particulars pertains to the previous particulars of claim. The defendants, at their own choice did not bring to their plea a consequential amendment pursuant to the plaintiff amending its particulars of claim.

[23] Moreover, on a proper consideration of the two sets of particulars of claim, the only new factual allegation to which the defendants have to answer in the amended particulars of claim is that during April 2008 it came to the knowledge of the plaintiff that the defendants were still in possession of the truck tractor and that same was under registration number [.....]. An honest answer would be simple, either the defendants were still in possession of the said Truck Trucker as at April 2008, bearing the said registration number, or they were not.

[24] More than a year has lapsed and still the defendants have not amended their plea. I am in agreement with the submission made by the plaintiff's counsel M. C. Erasmus SC. that on the pleadings as they stand the particulars requested are most definitely relevant.

[25] Regarding the second defence the defendants essentially allege that they are only required to plead to the amended particulars of claim once the plaintiff has made discovery of the documents which it intends to use at the hearing of the trial.

[26] The defendants would only thereafter be obliged to answer to the request for further particulars or an alternative request for further particulars to be filed by the plaintiff.

[27] The defendants' case is manifestly that there are certain documents which are of paramount importance with regard to the dispute between the parties which they have not had sight of and in the absence thereof they cannot plead to the amended particulars of claim.

[28] At the outset and against the argument forwarded above, this defence is fatally defective as the defendants on their own version have not only already pleaded to substantially the same facts as contained in the amended particulars of claim but also opposed the plaintiff's summary judgment application under oath. The defendants contend that in motion proceedings the affidavits filed also constitute evidence, I am in agreement therewith. In Swissborough Diamond Mines v The Government of Republic of South Africa 1999 (2) SA 279 the determination of the law relating to the contents of affidavits were considered, I take cognisance thereof, that affidavits serve not only to place evidence before the court but also to define the issues between the parties. This is usual and routine.

[29] The defendants do not require discovery before they can answer to the amended particulars of claim. The rules are clear as to their own terms with regards to the service and filing of pleadings and as to when a litigant must make discovery.

[30] Rule 22(1) expressly provides that where a defendant has delivered a notice of intention to defend, he shall within 20 days after the service upon him of a declaration or within 20 days after delivery of such notice in respect of a combined summons, deliver a plea with or without a claim in reconvention, or an exception with or without an application to strike out.

[31] Rule 28(8) provides that a party affected by an amendment to a pleading may, within 15 days after the amendment has been affected or within such other period as the court may determine, make any consequential · amendment to the documents filed by the affected party. These are the only rules providing for the time periods with regards to the service and filing of a plea.

[32] As regards discovery, there are similarly two rules which are applicable.

[32.1] The first rule is rule 35(1) which provides that any party to any action may require any other party thereto, by notice in writing to make discovery on oath within 20 days of all documents and

tape recordings relating to any matter in question in such action (whether such action is one arising between the party requiring discovery and the party required to make discovery or not), which are or have at any time been in the possession or control

of such other party. Such notice shall not, save for the leave of a judge, be given before the close of pleadings.

[32.2] The second rule with regards to when discovery must be made in general is rule 37(1) which provides that a party who receives a notice of the trial date of an action shall, if he has not yet made discovery in terms of rule 35, within 15 days deliver a sworn statement which complies with rule 35(2).

[33] The effect of this sub-rule is that a party to an action is obliged to make

discovery upon receipt of the notice of the trial date of an action even where such party was not under rule 35(1) required to make discovery under oath.

[34] No provision is made in the rules that discovery should take place before a party is required to plead. To the contrary an order that discovery be given before the close of pleadings, i.e. before a party has pleaded, will only be made where there are exceptional circumstances which requires such an order.

lnerater v Minkowitz 1951 (2) SA 125 (W);

Cremhold's Estate v Cohen Bros 1923 OPD 125;

Teperson v Hoffman (1910) 20 CTR 88;

Ehlers v Malmesbury Board of Executors (1909) 26 SC 406.

[35] Such an order must obviously be preceded with an application to court for the appropriate direction, which has not been instituted by the defendants nor have they caused the necessary notices in this respect to be delivered.

[36] The defendants at no stage delivered a notice as contemplated in rule 35(14) which expressly provides that after the appearance to defend has been entered, any party to any action may for the purposes of pleading require any other party to make available for inspection within five (5) days a clearly specified document or tape recording in his possession which is relevant to a reasonably anticipated issue in the action and to allow a copy or a transcription to be made thereof.

[37] The unanswerable question is why such a notice was not delivered before the filing of the defendants initial plea and why the defendants did not, even under the direction of their new of attorneys, file such a notice before the expiry of the 15 days which it had to file a consequential amendment to its plea, pursuant to the amendment to the particulars of claim. The only answer is that either the documents are not necessary so as to enable the defendants to plead to the particulars of claim or that the defendants had or have the documents in their possession.

[38] On the defendants own version when their erstwhile attorneys' file contents were given to their current attorneys in the form of four lever arch files, containing all the documents relevant in the matter, the said documents not only pertained to the civil action but also to the criminal proceedings instituted against the defendants consequent upon a complaint of fraud lodged by the plaintiff.

[39] This should be considered against the fact that the defendants have already at this stage:

[39.1] put up a version previously in regard to the bulk of the allegations contained in the particulars of claim;

[39.2] put up a defence under oath in the summary judgment application in the absence of these documents;

[39.3] defended the criminal prosecution.

[40] The only logical inference to be drawn from these allegations is that the defendants' erstwhile attorneys and now the defendants' present attorneys of record had the documents in their possession in order to consider their defence at the summary judgment stage.

[41] Now, when the noose tightens, they rebuff, seemingly that they have these documents in their possession. The defendants contend that their current attorneys were appointed during or about 9 September 2014 and that they noted from the voluminous documents in their possession, that the plaintiff has affected an amendment to which there was no subsequent plea.

[42] On the defendants own version its current attorneys received four lever arch files from their previous attorneys of record and they also consulted with counsel briefly in regard to the matter.

[43] Conveniently the defendants allege that it was impossible for their legal representatives to acquaint themselves with the voluminous documents. However, the defendants expressly state that it appeared that the application for insurance, the insurance contract and their claim forms were needed to consider the request for further particulars and they could not find at that stage, any discovery by the plaintiff in this matter at all.

[44] The defendants do not state that the documents which they deem necessary is not contained in the said four lever arch files or the file contents of their previous attorney. What they in fact say is that during September 2014, before the application to compel was instituted, their attorneys were unable to peruse the four lever arch files for a period of more than a month in order to ascertain whether or not the documents were there, bearing in mind that they filed a plea to the initial particulars of claim as well as an affidavit resisting summary judgment, both of which contained their defence. All of the above in documented in a letter addressed to the plaintiff's attorney of 9 September 2014. It is clear that the defendants intend to shape their defence and version in accordance with the documents discovered which in itself raises serious questions regarding the manner in which the defendants conduct litigation. Whilst the plaintiff, notwithstanding the aforesaid, made full discovery during December 2014.

[45] The defendants have explored all avenues and they now wish to contend that the plaintiff's discovery is irregular or inappropriate. The defendants however do not inform the court that they did not deliver a notice in terms of rule 35(3). Consequently I also find that this defence has no merit either.

[46] The defendants further wish to submit that the plaintiff has not complied with rule 18(6) in that it has failed to annex to the particulars of claim the policy schedule and insurance agreement between the parties pertaining to these vehicles. Similarly neither a notice in terms of Rule 30A nor an exception was filed by the defendants in this respect. The necessity to have sight of these documents only arose during November 2014.

[47] Having regard to the above it is noted that rule 18(6) provides that a party who in his pleading relies upon a contract shall state whether the contract is written or oral and when and where and by whom it was concluded and if the contract is written, a true copy thereof or the part relied on shall be annexed to the pleading. This Rule only applies in instances where a plaintiff pursues a cause of action based on contract to sustain its cause of action.

[48] The defendants misunderstand the plaintiff's cause of action to be based in contract and which is patently incorrect .The plaintiff pursues its action against the defendants based on a fraudulent misrepresentation perpetrated against the plaintiff by the 1st defendant. The cause of action is evidently based on fraud and not in contract and therefore rule 18(6) does not apply under these circumstances. I find this to be so fundamental and for the defendants to persist that the insurance contract be attached is unintelligible.

[49] The Defendants submit that consequent upon the contents of paragraphs 3.1 to 3.5 of its affidavit in support of the rule 6(5)(e) application , the court should condone the filing of a further affidavit in the proceedings. The factors that need to be considered in exercising the court's discretion to either allow the filing of further affidavits or not, are inter alia the following:-

[49.1] the reason why the evidence was not produced timeously;

[49.2] the degree of the materiality of evidence;

[49.3] the possibility that it may have been shaped to relief the pinch of the shoe;

[49.4] the balance of prejudice to the plaintiff, if the application is refused and the prejudice to the defendants, if it is granted;

[49.5] the state where the particular litigation has reached;

[49.6] the healing balm of an appropriate order as to costs;

[49.7] the general need for finality in judicial proceedings;

[49.8] the appropriateness or otherwise in all the circumstances are visiting the fault of the attorney upon the head of his or her

client.

[50] If a court is satisfied on these points, it will generally be inclined towards allowing the affidavits to be filed. In this regard the plaintiff relies upon the following decisions:

Watloo Meat & Chicken SA (Pty) Ltd v Sylvie Luis (Pty) Ltd [2008] ZAGPHC 136; 2008 (5) SA 461 (C) at 437 A - B;

Standard Bank of SA Ltd v Cewpersadh 2005 (4) SA 148 (C) 154 D - F;

Kasiyamhuru v Minister of Home Affairs 1999 (1) SA 643 (W) 650 D;

Dawood v Mahommed 1979 (2) SA 361 (D) at 365 A - C;

Cohen N.O v Ne/ 1975 (3) SA 963 (W) 966 A - B;

Parow Municipality v Joyce and McGrecord Ltd 1973 (1J SA 937 (C) at 939 A - C;

Transvaal Racing Club v Jockey Club of SA 1958 (3) SA 599 (W) 604 A-F.

[51] The court must exercise the discretion and a party cannot take it upon himself or herself to simply file further affidavits without first having obtained the leave of the court to do so.

Watloo Meat & Chicken SA (PtyJ Ltd Sylvie Luis (PtyJ Ltd supra 472 H -

Sealed Africa (Pty) Ltd v Kelly 2006 (3) SA 65 (W) 67 B - E; Standard Bank of SA Ltd v Cewpersahd supra, 153 H.

[52] Where further affidavits are filed without the leave of the court, the court can regard such affidavits as pro non scripto.

South Peninsula Municipality v Evans 2001 (1) SA 271 (C) 283 A - H;

Dhladhla v Erasmus 1999 (1) SA 1065 (LCC) 1072 D;

Nampesca (SA) Products (Pty) Ltd v Zadere 1999 (1) SA 886 (C) 892 J -

893 A;

Dawood v Mahommed supra, 364 G - H

[53] It is only in exceptional circumstances that a fourth set of affidavits will be received.

South Peninsula Municipality v Evans supra, 283 A - H;

Nampesca (SA) Products (Pty) Ltd v Zadere supra 892 J - 893 A; Kasimanyuru judgment at 649 H - 650 D.

[54] Special circumstances may exist where something unexpected or new emerged from the applicant's replying affidavit.

Afrique Oil (Pty) Ltd v Ramadani Investments CC 2004 (1) SA 35 (N) at 38 J - 39 A.

[55] It is essentially a question of fairness to both sides as to whether or not further sets of affidavits should be allowed.

Milne N.O v Fabric House (Pty) Ltd 1957 (3) SA 63 (N) at 65 A.

[56] The plaintiff's counsel makes the following submissions which are convincing and sustainable and which I am in agreement with. Namely that the defendants introduce facts for which they require leave to introduce into the record simultaneously with the filing of their affidavits in support of its application for leave to do so.

[56.1] No reason is given why the evidence was not produced timeously, specifically as part and parcel of the defendants answering affidavit;

[56.2] the bulk of the evidence which the defendants seek to introduce is irrelevant for purposes of the relief pursued by the plaintiff in terms of the application to strike out or their counter

application.

[56.3] the facts which the defendants seek to introduce on its own version is aimed at providing a basis for an order that the

plaintiff be compelled to comply with rule 18(6) and to sustain a cause of action and to procure the setting aside/rescission of the court order compelling the defendants to answer to the plaintiff's request for further particulars;

[56.4] the healing balm of an appropriate order as to costs as well as the general need for finality in the judicial proceedings are not impacted upon pursuant to the intention to file a further

affidavit;

[56.5] it is reiterated that this affidavit has already been filed notwithstanding the court not having granted leave to do so;

[56.6] from a proper reading of the replying affidavit, the only material fact addressed in this affidavit which is not contained in the founding affidavit is the confirmation that the plaintiff indeed discovered pursuant to the defendants order to compel dated 1 December 2014;

[56.7] this fact was already, at the stage of the defendants filing their answering affidavit, within the knowledge of both the

defendants and their attorneys and they should have disclosed this in answer should they have wanted to place same before the court, which they did not. They themselves elected not to take the court into their confidence by placing these facts before the court and now, in hindsight they cry prejudice as a result thereof.

[57] I find that the content of the replying affidavit in the strike out application does not warrant the filing of any further affidavit. Therefore I am also in agreement with the submission that the application for leave to file the further affidavit should be dismissed.

[58] Regarding the defendants' application to amend its counter application and its intended application to set aside the court order is to introduce into the counter application a prayer for the rescission I setting aside of the court order. The further submission made by the plaintiff's counsel is that the judgment is sought to be rescinded because the defendants consented to the order being taken whilst they were acting on an honest mistake on their part. The alleged honest mistake is essentially that the defendants were unaware that the plaintiff had amended its particulars of claim and that the request for further particulars pertained to the erstwhile particulars of claim. However, the plaintiff's request for further particulars expressly states in the introduction that:

"The plaintiff did amend its particulars of claim and the defendants did not file an amended plea. The questions posed herein are with reference to plaintiff's initial particulars of claim read with defendant's plea thereto."

[59] Further, already during September 2014, before the Order of the Honourable Justice Rabie J. was granted, the defendants indicated that the request for further particulars had to be answered which naturally implies that they had read it and had knowledge of it. Therefore it is inconceivable how the alleged mistake could have occurred. No explanation is advance therefor. Consequently any relief for the rescission of the order sought to be introduced would be without legal basis and fatally flawed. It is trite that the issue proposed to be introduced by the amendment must be a triable issue. Which in itself is an issue which can be proved by the evidence foreshadowed in the application for the amendment, will be viable or relevant, or which, as a matter of probability, will be proved by the evidence foreshadowed.

Trans-Drakensberg Bank Ltd v Combined Engineering (Pty) Ltd 1967 (3) SA 632 (D) at par 641A;

Barnard v Barnard 2000 (3) SA 741 (C) at 754F

Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd 2005 (6) SA 23 (C).

[60] Save in exceptional circumstances an amendment which would render a pleading excipiable should not be allowed.

See Krischke v RAF 2004 (4) SA 358 (W) at 363B;

Alpha (Pty) Ltd v Carltonville Ready Mix Concrete CC 2003 (6) SA 289

(W).

[61] To the extent that the defendants persist that the order should be set aside consequent upon the alleged mistake, a common mistake on behalf of one of the litigants do not fall under the category where the defendants consented to the order in justus error as contemplated in Rule 42 of the Uniform Rules. Such a mistake has to be common to all the litigants concerned, which the mistake complained of is not.

Sibanyoni KR Transport Services v Sheriff Transvaal High Court [2005] ZAGPHC 118; 2006 (4) SA 429 (T) at

432A-B;

De Wet v Western Bank Ltd 1979 (2) SA 1031 (A) at 1044;

Go/Jach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd 1978 (1) SA 914 (A) at 922C-D.

[62] Even if the mistake complained of is that of the court then and in such event, the order can only be set aside if the order was granted consequent upon a fraud perpetrated against the court as the court becomes functus officio once the order has been granted.

First Consolidated Leasing Corp v McMullin 1975 (3) SA 606 (T) at 608.

[63] In terms of the letter of 9 September 2014 from the defendants' attorney and on the defendants' own version the request for further particulars needed to be answered. On 31 October 2014 the defendants' attorney confirmed in writing that a consultation was scheduled with the defendants with the specific view of preparing an answer to the request for further particulars.

[64] On 7 November 2014 the defendants' attorney confirmed that the defendants would be in a position to answer the request for further particulars by 19 November 2014. On 18 November 2014 the defendants' attorney states that the defendants take note of the fact that the further particulars had to be provided within 20 court days and further states " but now realised that such order should never have been given, taking into account the amendment . "

[65] Notwithstanding the defendants have not instituted a proper application for the rescission of the order, on 15 July 2014 the defendants requested the plaintiff to provide it with further particulars to which request, the plaintiff forthwith proceeded and complied with as set out in a letter dated 1 December 2014 addressed by the plaintiff's attorneys to the defendants' attorneys.

[66] Accordingly, I find that the defendants are wilfully refusing to answer the plaintiff's request for further particulars and the defendants wrongly submit that their refusal is justified. Further that the defendants' wants to shape its version and evidence along the lines of what the prevalent documents provide for and in accordance with what it concerns the plaintiff would be able to prove. This approach is of an altitude, correctly submitted by the plaintiff's counsel to outline the defendants' evidence now that the shoe is pinching.

[67] The defendants have literally resorted to all and any measures available to it, to prevent the striking out application from proceeding as well as to avoid answering the plaintiff's request for further particulars.

[68] I further find that not one of the measures employed by the defendants have any merit. The defendants clearly it seems, is to delay the finalisation of the matter for so long as possible. There is no reason for the defendants' blatant refusal to answer the plaintiff's request for further particulars and that is that a truthful answer would constitute a concession of the merits. This matter has run its course and that the circumstances call for an order as sought by the plaintiff in the striking out application.

[69] No prayer as contained in the counter application has any merit and on no basis has a case been made out for the relief as sought by the defendants in that application. When the circumstances above are considered against the circumstances taken into account in the matter of :-

Leask v East Cape Forest Products CC t/a Highbury Treated Timbers (12851 07) (2008) ZAECHC 171 - unreported judgment by Plasket J.

the plaintiff has made out a proper case for the relief pursued in terms of the striking out application.

In conclusion, I find that the plaintiff has made out a case for the striking out of the application. On that basis I had granted an Order on 25 June 2015 as follows:-

1. Granting judgment in favour of the applicant/plaintiff in the sum

of R742 440, 00 against the first and second defendants/ respondents jointly and severally the one to pay the

other to be absolved;

2. Interest on the amount of R742 440, 00 at the rate of 15.5% per annum from date hereof to date of final payment;

3. Dismissing the first respondent's I first defendant's counterclaim with costs;

4. Costs of this application;

5. Costs of the action.

______________

E. I. MOOSA AJ.

Heard on 17-18 June 2015

Judgment delivered on: 11th September 2015

Appearances:

For: The Plaintiff - Adv. M.C.Erasmus SC.

Botha Attorneys

c/o Friedland Hart Solomon and Nicolson.

For: The Defendants - Adv. G.F.Akermann

Claassens Van Niekerk Inc. Attorneys

c/o Loubser Van der Walt Inc. Attorneys.