Shell SA Marketing (Edms) Bpk v JG Wasserman h/a Wasserman Transport (681/2004) [2008] ZAFSHC 37; 2009 (5) SA 212 (O) (5 June 2008)

Shell SA Marketing (Edms) Bpk v JG Wasserman h/a Wasserman Transport (681/2004) [2008] ZAFSHC 37; 2009 (5) SA 212 (O) (5 June 2008)

The court held that rule 24(1) prescribes three methods for delivering a counterclaim: simultaneously with the plea, with the plaintiff's consent after the plea, or with the court's leave if consent is refused. The defendant did not deliver its counterclaim with its plea, did not seek the plaintiff's consent, nor did it apply for the court's leave. Amending the plea to introduce a counterclaim is not one of the recognised methods under rule 24(1). The procedure adopted by the defendant bypassed the plaintiff's procedural rights and the authority of the court, and if allowed, would undermine the purpose of the rule and the principle of litis contestatio. The defendant's notice of intention...

Citation
[2008] ZAFSHC 37
Parties
Applicant: Shell SA Marketing (Edms) Bpk; Defendant: JG Wasserman h/a Wasserman Transport
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 June 2008
Case Number
681/2004
Procedural Posture
Interlocutory Application / Application to Set Aside Irregular Step Under Rule 30(1)
Outcome
The plaintiff's application in terms of rule 30(1) is successful. The defendant's notice of intention to amend its plea is declared irregular and set aside. The defendant is ordered to pay the costs.
Judges
Rampai
Legal Topics
Counterclaim Procedure, Amendment of Pleadings, Rule 24, Rule 28, Rule 30, Litis Contestatio
Civil Procedure Counterclaim Procedure Amendment of Pleadings Rule 24 Rule 28 Rule 30 Litis Contestatio

Case Brief

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Parties

Shell SA Marketing (Edms) Bpk

Applicant

JG Wasserman h/a Wasserman Transport

Defendant

Procedural Posture

Interlocutory Application / Application to Set Aside Irregular Step Under Rule 30(1)

Legal Issues

  1. 1 Whether a defendant may introduce a counterclaim long after delivery of its plea by amending the plea to accommodate the counterclaim.
  2. 2 Whether the procedure adopted by the defendant to introduce a counterclaim via amendment is permissible under rule 24(1).
  3. 3 Whether the defendant's notice of intention to amend its plea constitutes an irregular procedural step.

Ratio Decidendi

The court held that rule 24(1) prescribes three methods for delivering a counterclaim: simultaneously with the plea, with the plaintiff's consent after the plea, or with the court's leave if consent is refused. The defendant did not deliver its counterclaim with its plea, did not seek the plaintiff's consent, nor did it apply for the court's leave. Amending the plea to introduce a counterclaim is not one of the recognised methods under rule 24(1). The procedure adopted by the defendant bypassed the plaintiff's procedural rights and the authority of the court, and if allowed, would undermine the purpose of the rule and the principle of litis contestatio. The defendant's notice of intention...

Court Disposition

The plaintiff's application in terms of rule 30(1) is successful. The defendant's notice of intention to amend its plea is declared irregular and set aside. The defendant is ordered to pay the costs.

Orders

  • The defendant's notice of intention to amend its plea dated 14 December 2007 is declared irregular and set aside.
  • The defendant is directed to pay the costs of the application.