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Rademeyer v Ideal CFD Financial Services (Pty) Ltd (2655/2008) [2009] ZAECGHC 1 (26 February 2009)

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FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

 

PARTIES:


ANDRE PIENAAR RADEMEYER

PLAINTIFF

 


and


 


IDEAL CFD FINANCIAL SERVICES (PTY) LTD

DEFENDANT

 

  • Registrar: CASE NO: 2655/2008

  • Magistrate:

  • High Court: EASTERN CAPE DIVISION

 

DATE HEARD: 19/2/09

DATE DELIVERED: 26/2/09

 

JUDGE(S): PLASKET J

LEGAL REPRESENTATIVES –

 

Appearances:

  • for the Appellant(s): Plaintiff in person

  • for the Respondent(s): Mr. R. Brooks

 

Instructing attorneys:

  • Appellant(s): The Plaintiff in person

  • Respondent(s): Wheeldon, Rushmere and Cole. 

CASE INFORMATION -

  • Nature of proceedings : Application

 


IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

 

CASE NO: 2655/2008

DATE HEARD: 19/2/09

DATE DELIVERED: 26/2/09

NOT REPORTABLE

 

In the matter between


 


ANDRE PIENAAR RADEMEYER

PLAINTIFF

 


and


 


IDEAL CFD FINANCIAL SERVICES (PTY) LTD

DEFENDANT


The plaintiff purported to institute proceedings against the defendant. The defendant filed a notice in terms of rule 30 in which certain irregularities in the summons were identified and the plaintiff was afforded an opportunity to remove the cause of complaint. Instead of doing so, he issued a notice which purported to except to the rule 30 notice and an application styled an application for oral argument and for the consolidation of the various procedural steps taken in the matter. The court dismissed the exception and the application and granted the rule 30 application, setting aside the plaintiff’s summons. The plaintiff was ordered to pay the defendant’s costs.

 

JUDGMENT

 

PLASKET J:

 

[1] Mr. Brooks, who appeared for the defendant, described the conduct of this matter by the plaintiff, who represents himself, as bizarre. There is a great deal of accuracy in this description. The matter highlights the importance of legal representation as the pleadings show a great, and no doubt understandable, lack of understanding on the part of the plaintiff in respect of the practice and procedure of pleading. This is of some moment as the way in which the plaintiff has conducted this matter has bordered on the vexatious.

 

[A] THE BACKGROUND

 

[2] The saga commences with what purports to be the plaintiff’s combined summons in an action for damages against the defendant which is described as ‘Ideal CFD Financial Services (Pty) Ltd and/or Ideal CFDs’. No particulars of claim are attached to the summons. Instead, an affidavit deposed to be the plaintiff supplants particulars of claim. Furthermore, no address for service within eight kilometres of the court is provided, as required by rule 17(3) of the Uniform Rules.

 

[3] The defendant filed a notice of its intention to defend and, simultaneously therewith, a notice in terms of rule 30(2) in which it identified certain defects in the combined summons and afforded the defendant ten days to remove the causes of complaint.

 

[4] Instead of attending to the problems so identified, the plaintiff, filed a document which he titled a ‘Notice of Exception and/or Notice to Strike Out by Plaintiff in terms of Rule 23(1) and 23(2) to “Defendant’s Notice in Terms of Rule 30(2)”’. He also filed, simultaneously with this notice, a further notice which he titled a ‘Notice of Motion: Application for Oral Argument Regarding Illegal Action by Defendant in terms of Rule 30(2) and Consolidation of Actions in terms of Rule 11’. This notice of motion – which is not supported by an affidavit – reads as follows, in respect of the relief sought therein:

 

Be pleased to take notice that Application is made by the Plaintiff to the above Honourable Court for the following orders (this document consists of 12 pages in total, 3 pages of Notice and 9 pages of Annexure):

 

i)          To set aside the “Defendant’s Notice in terms of Rule 30(2)” dated 15 January 2009,

 

ii)        to prohibit the Defendant to have legal documents served upon the Applicant relating in any way to this case number 2655/2008 from another Court of jurisdiction, whether National or Foreign, without consent of the above Honourable Court or the Local Division at East London, as it pleases the Court,

 

iii)        to order the Defendant to plea in terms of Rule 22(2) of the “Uniform Rules of High Court”, as provided for in the Supreme Court Act, 1959, as amended (called “Rule” or “Rules”),

 

iv)        to interpret Rule 17(3) as applicable in this case, in context with Chapter 2 of the Constitution of the Republic of South Africa, 1996, as amended, and order the Defendant to accept the Applicants address by either keeping the Court File at Grahamstown Provincial Division or by ordering the Registrar to have the Court File transferred to the East London Local Division, as it pleases the above Honourable Court, and

 

v)       to order consolidation of the following actions on the basis of the Plaintiffs Summons dated 15 December 2008:

 

a)        Defendant’s Notice in terms of Rule 30(2) dated 15 January 2009,

 

b)        Plaintiffs Notice to Strike Out and/or Except in terms of Rule 23 dated 26 January 2009, and

 

c)        This Application for oral argument before the Honourable Court.’

 

The plaintiff set the application down for hearing on 19 February 2009. 

 

[5] To this purported exception and application, the defendant filed notices of intention to oppose as well as a notice in terms of rule 30(2) to set aside both the exception and the application as irregular proceedings.

 

[6] That drew a response from the plaintiff in the form of a document entitled a ‘Notice of Motion by Plaintiff in terms of Rule 31(2)(a): Application for Default Judgment; and Application for Related Matters and further Consolidation of Actions in terms of Rule 11’. This application is also set down for hearing on 19 February 2009. The relief sought reads as follows:

 

Be pleased to take notice that Application is made by the Plaintiff to the above Honourable Court for the following orders (this document consists of 11 pages in total, 3 pages of Notice and 8 pages of Annexure):

 

i)        To declare the Defendant’s “Appearance to Defend” dated 15 January 2009 as exactly that and not as a valid “Notice of Intention to Defend” in terms of Rule 19(1),

 

ii)        To order consolidation of the following actions on the basis of the Plaintiffs Summons dated 15 December 2008:

 

a)        Defendant’s Appearance to Defend dated 15 January 2009,

 

b)        Defendant’s Notice in terms of Rule 30(2) dated 15 January 2009,

 

c)        Plaintiff’s Notice to Strike Out and/or Except in terms of Rule 23 dated 26 January 2009,

 

d)        Plaintiffs Application for Oral Argument regarding illegal action by Defendant dated 26 January 2009, and

 

e)        This Application by the Plaintiff of 09 February 2009.

 

iii)        To grant Default Judgment against the Defendant on the basis of the Plaintiff’s Summons dated 15 December 2008 and the requested consolidation of the above actions, attested oral statements and oral argument.

 

iv)        To grant cost of all actions before the Court in favour of the Plaintiff/Applicant.’

 

Once again no affidavit is attached to this notice of motion. Instead a number of documents are attached to it.

 

[7] At this point, in order to ‘ensure some modicum of compliance with the rules of practice’ (as it was put in the heads of argument of Mr. Brooks), the defendant indexed and paginated the papers and set down for hearing its first application in terms of rule 30(2). (Heads of argument were also filed on behalf of the defendant.) The plaintiff filed what he termed a ‘Notice to the Registrar of the Above Honourable Court in terms of Rule 16A(1) that, Constitutional Issues are going to be Raised’ and an ‘Application to the Above Honourable Court to Declare Certain Issues Unconstitutional in terms of the Constitution of SA 1996, as amended’. Despite all of the filing of notices and applications, the plaintiff has neglected to file heads of argument, as he is required to do.

 

[8] The issues I intend to deal with in this judgment are: (a) the plaintiff’s ‘Notice of Exception’; (b) his ‘Application for Oral Argument Regarding Illegal Action by Defendant in terms of Rule 30(2)(a) and Consolidation of Actions in terms of Rule 11’; and (c) the defendant’s rule 30(2)(a) notice. For reasons that will become clear, it is not necessary to deal with any of the other notices and applications with which the plaintiff has seen fit to burden the papers.

 

[B] NOTICE OF EXCEPTION

 

[9] The first paragraph of the notice states that the Plaintiff ‘takes exception to the “Defendant’s Notice in terms of Rule 30(2)” dated 15 January 2009’. It purports to be a notice of exception in terms of rule 23(1) and 23(2). It is incompetent. An exception may only be taken to a pleading that is either ‘vague and embarrassing or lacks averments which are necessary to sustain an action or defence’. In this instance it is directed at a notice and not a pleading, that notice is not vague or embarrassing in any manner and it has nothing to do with ‘an action or defence’ as it is aimed at rectifying an irregular proceeding. The plaintiff’s so-called exception must therefore fail, with costs.

 

[C] THE APPLICATION

 

[10] The plaintiff’s application is defective because it fails to comply with rule 6(1) which states that ‘[s]ave where proceedings by way of petition are prescribed by law, every application shall be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief’. No affidavit is attached to the notice of motion, although a number of documents are. In the absence of an affidavit they have no evidentiary value. 

 

[11] Without an affidavit, the relief that is claimed is entirely meaningless. For instance, I have not idea whatsoever as to why the defendant’s rule 30(2) notice should be set aside (assuming this is competent) and what is meant by the second prayer, for an order ‘to prohibit the defendant to have legal documents served upon the applicant relating in any way to this case number 2655/2008 from another court of jurisdiction, whether national or foreign, without consent of the above honourable court or the Local Division at East London, as it pleases the court’.

 

[12] Prayer iii, in which is sought an order directing the defendant to file its plea is plainly incompetent and so too is prayer (iv), which appears to seek an order directing the court to, inter alia, interpret rule 17(3) ‘in context with’ the bill of rights. Finally, prayer v is incompetent and meaningless too. It purports to apply for the ‘consolidation’ of the three issues dealt with in this judgment.  Rule 11 contemplates the consolidation of ‘separate actions’ where it appears to a court that it is convenient to do so whereupon ‘the said actions shall proceed as one action’. Reliance on this provision by the plaintiff in these circumstances is misplaced. For the reasons I have stated above, the plaintiff’s purported application will be dismissed with costs.

 

[D] THE RULE 30(2)(a) NOTICE

 

[13] Rule 30 provides as follows:

 

(1)     A party to a cause in which an irregular step has been taken by any other party may apply to court to set it aside

 

(2)      An application in terms of subrule (1) shall be on notice to all parties specifying particulars of the irregularity or impropriety alleged, and may be made only if:

 

(a)      the applicant has not himself taken a further step in the cause with knowledge of the irregularity;

 

(b)      the applicant has, within ten days of becoming aware of the step, by written notice afforded his opponent an opportunity of removing the cause of complaint within ten days;

 

(c)      the application is delivered within 15 days after the expiry of the second period mentioned in paragraph (b) of subrule (2).

 

(3)      If at the hearing of such application the court is of opinion that the proceedings or step is irregular or improper, it may set it aside in whole or in part, either as against all the parties or as against some of them, and grant leave to amend or make any such order as to it seems meet.

 

(4)      Until a party has complied with any order of court made against him in terms of this rule, he shall not take any further step in the cause, save to apply for an extension of time within which to comply with such order.’

         

[14] It is not in dispute that the plaintiff did not make use of the opportunity afforded to him to remove the causes of complaint directed at his combined summons. The ten day period provided for by rule 30(2)(b) has now expired.

 

[15] In essence, the defendant’s complaints are that the combined summons is irregular in that no particulars of claim that comply with rules 17 and 18 are provided and that no address for service within eight kilometres of the office of the registrar appears therein.

 

[16] There is merit in the defendant’s complaints. No particulars of claim are attached to the summons. Instead a long affidavit is attached. This is irregular.  Secondly, it is patently clear that the plaintiff has not complied with rule 17(3): the address provided is 172 Cockle Crescent, Cove Rock Estate, East London which is a great deal more then eight kilometres from the office of the registrar.

 

[17] I may add that during argument the plaintiff asked for this matter to be postponed to a date on which a further application brought by him to have rule 17(3) set aside as being unconstitutional may be heard. There is no merit in the request for a postponement. When and if his application is ripe for hearing it can be dealt with. I can see no reason why these proceedings have to be postponed to whenever, if at all, that may be.

 

[18] For the reasons set out above, the plaintiff’s combined summons must be set aside as irregular, with costs.

 

[E] THE ORDER

 

[19] I make the following order.

 

1.      The plaintiff’s exception is dismissed with costs.

 

2.      The plaintiff’s ‘Application for Oral Argument Regarding Illegal Action by Defendant in terms of Rule 30(2)(a) and Consolidation of Actions in terms of Rule 11’ is dismissed with costs.

 

3.       The defendant’s application in terms of rule 30(2)(a) succeeds with costs and the plaintiff’s combined summons is set aside.

 

C. PLASKET

JUDGE OF THE HIGH COURT

 

Appearances

For the Plaintiff:

The Plaintiff in person

For the Defendant:

Mr. R. Brooks instructed by Wheeldon, Rushmere and Cole.