"undefended cases", but the fact that reference was only made to "issue of the summons", and not service as well,
showed clearly that the Rule was never intended to apply to a matter that had proceeded beyond the issue of summons, in other words,
an undefended matter.
When the wording of the Rule was altered to its present form the word "undefended" was omitted and a reference to the service
of summons was incorporated. A change of wording in a statutory provision prima facie, although not inevitably, signifies a change
of intention (Port Elizabeth Municipal Council v Port Elizabeth Electric Tramway Co Ltd 1947(2) SA 1269 (A) at 1279; R v Shole 1960(4)
SA 781 (A) at 787 B). Much will depend upon the nature, extent and significance of the change. The change in 1936 was a radical one
from the specific ("undefended cases") to the non-specific ("summons in an
12 action"), and in my view provides a strong indication that the rule-maker
no longer intended the application of the Rule to be limited to
undefended actions. Had it intended the limitation still to apply the
obvious course would have been to retain the word "undefended". Its
omission was clearly calculated, not inadvertent. Furthermore, the
incorporation of a reference to the service of a summons must be seen
as moving the operation of the Rule from a situation which could pertain
only to an undefended action closer to a defended one. In this regard
one must accept that there was continuity of intention on the part of the
rule-maker when the Rule, as introduced in 1936, was incorporated in
(virtually) unaltered form in the new set of Rules in 1968, in other
words, the change of intention manifest in 1936 must be taken to have
still held sway in 1968.
13 It was argued that when the Rule in its current form was
introduced in 1936 the word "undefended" was rendered redundant or
superfluous by the introduction of the proviso which indicates that the
Rule is only applicable to undefended actions. I do not agree. I see no
reason why, sensibly interpreted, the proviso cannot also apply to actions
where there has been an appearance to defend followed by an
arrangement or settlement, whether overall, partial or conditional. But
even if the operation of the proviso was confined to undefended actions,
it would not necessarily follow that the rest of the Rule should also be
so confined.
I agree with the view expressed in Sibiya's case (supra at 336 C -
D) that the primary purpose of the Rule is to penalise a supine plaintiff.
(A subsidiary or complementary purpose may be to bring about finality,
14
both administratively and otherwise, to matters where actions have been
instituted but nothing done to actively pursue them.) This purpose would apply to both undefended and defended cases. There is no
difference in principle between a plaintiff who issues a summons and then sits back and does nothing and one who after service of
summons and entry of appearance to defend (or, as in the present instance, after receipt of a request for particulars) acts likewise.
In either instance he is being supine, and in both instances his inactivity is worthy of censure. The purpose of the Rule is best
served if it applies to both situations. It is true that where there has been an appearance to defend followed by a request for further
particulars and nothing further, the actual period of inactivity before the twelve month period from the date of service expires
is correspondingly shortened. But the vigilant plaintiff can
15 guard against, and avoid, any pitfalls created by the Rule. The fact that
a defendant who has entered an appearance to defend and requested
further particulars, or filed a plea, can utilise the Rules to compel a
plaintiff to respond and take further steps in the prosecution of the action
does not alter the plaintiff's position. It may suit a defendant, for tactical
or other reasons, simply to sit back and do nothing. But the Rule is not
designed to penalise a defendant for inaction or a failure to take steps to
bring a matter to finality. The most that can be said is that the Rule
probably has greater application in undefended matters than in defended
matters. It does not follow that it should not apply to both. And it is a
far cry from concluding that it can only apply to undefended actions.
It was also argued that if the Rule were to be interpreted to apply
to defended actions it would give rise to a number of anomalies. Some
16 of these so-called anomalies are alluded to in the judgments referred to
in the Langenhoven case. Others were raised in argument. Anomalies
have their place in the process of interpretation (Manjra v Desai and
Another 1968(2) SA 249 (N) at 254 B;). Anomalies one way or another
are an inevitable consequence of most statutory provisions. The fertile
mind will always be quick to find them. In dealing with anomalies one
must draw a distinction between far-fetched anomalies and those that are
ordinary and predictable (Aetna Insurance Co v Minister of Justice
1960(3) SA 273 (A) at 278 B - D). I do not propose to deal with the
various anomalies that have been suggested. Suffice it to say that they
strike me as being more apparent than real, do not lead to an absurdity
(it not having been suggested that they did) and, more importantly, arise
from situations which can be guarded against, forestalled or avoided by
17 a vigilant plaintiff who, after all, is in a position largely to control the
litigation process and determine his own destiny.
In the result there is no reason, or no sufficient reason, to depart from the literal interpretation of Rule 10. I am accordingly
of the view that it applies to both defended and undefended actions as found by the Court a quo as well as the courts in the Sibiya
and Langenhoven cases.
As it was common cause that the appellant had taken no further steps in the prosecution of the action after service of summons it
is not necessary to consider the meaning of that phrase in Rule 10. What it clearly does not require of a plaintiff is that he should
bring his action to finality within twelve months of the service of summons. It would seem that all that is required of a plaintiff
is that he should within that period advance the proceedings one stage nearer completion, thereby
18
evincing his intention of pursuing the matter further. In view of the
consequences that flow from non-compliance with Rule 10 it may
require a restrictive interpretation in this respect. A step, rather than
steps, in advancing the proceedings is probably all that is required to
preclude the potentially harmful operation of Rule 10 (cf Kagan and Co
v Gunter's Store 1955(2) SA 618 (O) at 621 C - D). I express no firm
view on the matter.
This brings me to the next issue which is whether the provisions
of Rule 60(5) can be invoked in order to revive the appellant's lapsed
summons. This also involves a determination of the rule-maker's intent.
Rule 60(5) provides:
"(5) Subject to the provisions of rule 17(l)(b), any time limit prescribed by these rules, except the period prescribed in rule
51(3) and (6), may at any time, whether before or after the expiry of the period limited, be extended-
19
(a)
by the written consent of the opposite party; and
(b)
if such consent is refused, then by the court on application and on such terms as to costs and otherwise as may be just."
Rule 17(l)(b) prohibits a defendant from raising an exception without
leave of the Court consequent upon a failure to deliver particulars of any
exception to a summons; Rule 51(3) and (6) relate to an appeal and a
cross-appeal. They are not germane to the present enquiry.
The issue referred to resolves itself into a question of what the meaning is of the word "lapse" and whether the twelve
month period referred to in Rule 10 is a "time limit prescribed by these rules" capable of extension.
The meaning of "lapse" within the context of Rule 10 was considered in Minister of Law and Order and Others v Zondi 1992(1)
SA 468 (N). In delivering the judgment of the Court Thirion J (at 470
20 I) referred to the observations of Selke J in Dawood v Abdoola and
Another 1955(2) SA 365 (N) at 368 that the more usual meaning of the
verb "to lapse", in the parlance of the law, is "to fall or pass away
finally". He also referred (at 471 B) to Pietermaritzberg Corporation
v Union Government 1935 NPD 36 at 51 where Matthews AJP said:
"'Lapse' is a term which can only mean to come to an end altogether. The meaning given by Webster's Dictionary to 'lapse' when
used in this sense is 'to become ineffectual or void'."
To these references may be added the Shorter Oxford English
Dictionary's definition of "lapse" in a legal sense (Vol I, 1176) viz "[t]he
termination of a right or privilege through neglect to exercise it within
the limited time . . .".
Thirion J went on to conclude (at 471 B- F):
"The meaning of an expression must depend to a large
21
extent on the context in which it is used, but on the view which I take of Rule 10, its effect is to render a summons void at the
expiration of the period of 12 months unless a further step has been taken in the prosecution of the action within that period and
provided that the proviso to the Rule does not find application.
It would seem to me that the object of Rule 10 is to penalise a plaintiff who has been unduly dilatory in taking a further step in
the prosecution of his action after issue or service of the summons. This object is achieved by depriving the summons after the passage
of the prescribed period of time of all legal efficacy."
I agree. This corresponds with the use of the word "verval" in the
Afrikaans text of Rule 10, a word which, if anything, is even clearer and
stronger in its meaning than "lapse". Die Verklarende Afrikaanse
Woordeboek (8th Ed. p 1020) defines "verval" as, inter alia, "ongeldig
word". HAT p 1273) gives as one of its meanings "sy geldigheid of
waarde verloor".
22 The matter does not end there. Thirion J went on to add (at 471
F-G):
"The fact that a summons has lapsed in this sense would, not by itself, debar the Legislature from providing for its revival
or for it to be reinvested with legal efficacy but, having regard to the important legal consequences which would flow from such
revival and the prejudice which it might cause a defendant, it is hardly likely that the Legislature would have left the matter of
its revival to be dealt with under a general provision such as Rule 60(5).."
In coming to this conclusion the learned judge appears to have
been influenced by three factors:
(a)
the fact that the rule-maker did not circumscribe in detail the requirements which had to be complied with for a revival of the lapsed
summons to take place (at 471 G);
(b)
the fact that the proviso to the Rule "sets out the requirements which have to be complied with in order to
23
prevent a summons from lapsing", this being "an important
indication that the [rule-maker] contemplated that only in
the case provided for in the proviso, and in no other, can
there be an extension of the period of 12 months" (at 471
H -1); and
(c) the fact that in other Rules which provide for lapsing a
magistrate is not competent under Rule 60(5) to grant an
extension of time (at 471 J - 472 C).
Re (a): I do not find this a compelling consideration. There is no reason
why the requirements for revival need to be spelt out if the rule-maker
intended that the extension of the 12 month period by (a) written consent
of the opposite party, or (b) order of court could effectively revive or
reinstate the summons. Such intention would not be in conflict with the
24. purpose of Rule 10. The sanction for inaction remains. The plaintiff is
penalised for not taking further steps within the prescribed period - his
summons lapses. But the situation is not irretrievable. If written consent
to the extension of the period, or failing that, a court order, can be
obtained, there is no fundamental principle which precludes the revival
of a summons through extension of the period. In the former instance
there can be no prejudice to a defendant who has consented to an
extension of time; in the latter instance the question of possible
prejudice is a factor to be considered in the exercise of the magistrate's
discretion. Nor is there anything absurd or incongruous in such a
situation. Furthermore, there can be many reasons for a plaintiffs
inactivity after the service of summons, just as there can be many
reasons for a plaintiffs failure to comply with other time limits
25 prescribed in the Rules. In my view it would be perfectly
understandable if the rule-maker decided to give a magistrate, in the
absence of written consent, an extensive discretion to decide whether or
not extensions of time should be granted when time limits prescribed by
the Rules had been exceeded, without circumscribing the requirements
in detail.
Re (b): Reliance on this factor is in my view misplaced. What it
overlooks is that the proviso to Rule 10 caters for a special and fairly
exceptional case where an otherwise apparently inactive plaintiff is able
to obtain an extension as of right without the need for written consent
of the opposite party or having to satisfy a magistrate to exercise a
discretion in his favour. From this it does not necessarily follow that a
plaintiff is precluded, in different circumstances, from obtaining an
26
extension of time in terms of Rule 60(5) with such written consent or
leave of the court.
Re (c): The other cases provided for in the Rules where extensions could be granted otherwise than under Rule 60(5) do not, in my
judgment, indicate that Rule 60(5) is not applicable in a case such as this. Where appeal or cross-appeals have lapsed there is a
power, not in the magistrate, it is true, but in the High Court, as the court of appeal, to grant an extension. Where a warrant referred
to in sec 65 F(l) or sec 65 G of the Magistrates' Courts Act 32 of 1944 has lapsed it may be extended under the proviso to Rule 45(4)
by a period not exceeding 12 months: in other words the power to extend, in that case, unlike the general power under Rule 60(5),
is limited in a particular way. In neither of the instances mentioned by Thirion J is there a "lapse" which
27 inevitably results in a permanent non-remittable termination of the right
to proceed.
Rule 60(5) provides for the extension of "any time limit prescribed by these rules". The word "any" is one of
very wide import (Arprint Ltd v Gerber Goldschmidt Group South Africa (Pty) Ltd 1983(1) SA 254 (A) at 261 B - D). Rule 10 effectively
imposes on a plaintiff, on threat of a sanction, a time restriction within which further steps (in the prosecution of an action)
have to be taken after issue or service of summons. Although coupled with a sanction, the restriction none the less remains a time
limit. As such it prima facie falls within the ambit of Rule 60(5). I can think of no compelling reason why the operation of the
Rule should be precluded. It is axiomatic that the rule-maker could have put its intention beyond doubt, if it was so minded, by
28
expressly excluding Rule 10 from the operation of Rule 60(5). It chose
not to do so.
In interpreting Rule 60(5), and how it impacts on Rule 10, two further considerations are worthy of mention. The first is that in
a matter pending in a High Court a plaintiff must, even if the action is undefended, proceed therewith within a reasonable time:
the court has, however, a discretion to allow proceedings on a stale summons to continue: see Herbstein and Van Winsen: The Civil
Practice of the Supreme Court of South Africa, 4th Ed 425-6, where the main decisions on the point are discussed. Neither principle nor policy dictates that there should be a fundamental
difference between the position in the High and Magistrates' Courts (subject to the express terms of the respective legislative provisions
that bear on the matter). In a case of
& 29 doubt as to the rule-makers* intention it seems appropriate to strive for
equality of treatment in the respective courts, lest a plaintiff be better off
in one rather than the other for no reason apart from the size of his claim.
The second is that Rule 10 could have serious consequences for a
plaintiff; consequences, moreover, out of all proportion to the latter's
"fault". This calls for a restrictive interpretation of its effect to make it
as least burdensome as possible; differently put, it calls for a wider
interpretation of any Rule that may impact upon it in order to curtail
Rule 10's radical effect.
In all the circumstances it seems to me that on a proper
interpretation of Rule 60(5) it permits of an extension of the period of 12
months in Rule 10, either with the written consent of the opposite party
or in the exercise of the court's discretion, and the corresponding revival
30 of the summons that has lapsed. (Written consent in the majority of
cases is an unlikely prospect, but there may be instances where it would
suit a defendant to give consent in order to dispose of a matter.) In my
view the magistrate was empowered in terms of Rule 60(5) to grant the
appellant's application for an extension of time to take a further step in
the prosecution of the action and on the facts of this matter the
application should have succeeded. Mr Ford, who appeared for the
respondent, very fairly and in my view correctly, conceded during
argument that if the magistrate was empowered to grant an extension
under Rule 60(5), a sufficient case for the granting of such an order had
been made out on the papers.
The following order is made:
1) The appeal is allowed, with costs.
31
2)
The order of the court a quo is set aside.
3)
The order of the magistrate is altered to read:
"a) The plaintiff's application in terms of Rule 60(5) of the Magistrates' Court Rules is granted.
b)
The period of 12 months in Rule 10 within which to take a further step in the prosecution of the action is extended to 14 February
1995.
c)
The special plea is dismissed, with costs."
4)
The respondent is to pay the appellant's costs of appeal in the
court a quo.
J W SMALBERGER JUDGE OF APPEAL
SCOTT JA
)Concur
ZULMAN JA
)
MELUNSKY AJA
)
FARLAM AJA
)
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