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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

 

                                                                                                Case Number: 7803/2021

(1)           REPORTABLE: NO

(2)           OF INTEREST TO OTHER JUDGES: NO

(3)           REVISED: NO

13/12/2023

In the matter between:

 

 

In the matter between:

 

 

MATRICK FREIGHT SERVICES CC                                                        Applicant

 

and

 

EKURHULENI METROPOLITAN MUNICIPALITY                                  Respondent

                                                                                                                                                      

ORDER

[1]          The judgment of Molahlehi J handed down on 2 August 2022 is rescinded.

[2]          The respondent is to pay the costs of the application.

 

 

JUDGMENT

Fisher J:

 

Introduction

[1]          This is an application for rescission of an order in terms of which the plaintiff’s claim was struck out and dismissed with costs on the basis of a failure to comply with an order directing the plaintiff to file heads of argument in an exception to the particulars of claim.

[2]          The action concerns a claim in a building dispute. It is for payment of an amount of in excess of R7 million for goods sold and delivered and services rendered in connection therewith.

[3]          The rescission is opposed on the basis that the defendant argues that the explanation given for the default of appearance should not be accepted by the court.

[4]           In order to fully appreciate the explanation – which is that of the plaintiff’s attorney, it is necessary to set out some set out the procedural context leading up to the striking out of the plaintiff’s claim.

Procedural background

[5]          The claim was instituted on 18 February 2021, shortly before it was due to prescribe.

[6]          On 31 March 2021 the defendant municipality filed an exception in terms of which it contended that the plaintiff’s claim made out no cause of action.

[7]          The major thrust of the complaint in the exception was that there had not been a proper pleading of the cession of the claim relied on for the cause of action.

[8]           The municipality filed its heads of argument in the exception on 20 April 2021.

[9]          The response of the plaintiff’s attorney was to seek to amend the particulars of claim with the view to curing the alleged excipiability claimed by the municipality. This is a common and sensible approach when an exception is taken.

[10]       On 18 August 2021 the municipality objected to the proposed amendment. On 30 August 2021 the plaintiff launched an application to amend which application was opposed by the municipality on 16 September 2021.

[11]       There was thus an application to amend which was ripe for hearing which had the potential to make the exception redundant. This was its stated purpose of the application to amend.

[12]       This position notwithstanding, those representing the defendant instituted an application to compel the plaintiff to file its heads of argument in the exception within three days. This was an anomalous approach in light of the application to amend.

[13]       The application to compel the filing of heads was not opposed. The focus of the matter was on the application to amend. The plaintiff’s attorney was, understandably, under the impression that the exception would not be proceeded with and accordingly this process was not the focus of his office.

[14]       The plaintiff, continued in earnest with the prosecution of the application for amendment. The plaintiff’s attorney had made it clear, in writing, that the amendment proceedings should axiomatically precede the exception proceedings in that the application for amendment dealt materially with the exception.

[15]       Yet an application to strike out the claim on the basis of the failure to file the heads in the exception was brought.

[16]        This application to strike out succeeded where it should not have. This lies at the heart of the matter and will be examined later in some detail.

Discussion

[17]       The plaintiff’s attorney has been put to the distress and embarrassment of having to set out in detail how his depressive illness and personal circumstances led to the lapse which resulted in the failure to oppose the application to strike out. This is deeply regrettable.

[18]       The focus of the municipality is the explanation of the plaintiff’s attorney.  It is argued that the explanation is deficient and also that the plaintiff should not be allowed to rely on its attorney’s default.

[19]       This focus seeks to sidestep material deficiencies in the process which resulted in the order to strike out the claim. I turn to examine this process.

[20]       The first material step taken by the municipality was to bring an application to compel the filing of the heads of argument.

[21]       The municipality’s attorney, Philisa Ndikela Vellem (Vellem) made the founding affidavit in the application to compel and in the application to strike out.

[22]       The application to compel is troubling in that it fails to draw the courts attention to the fact that the plaintiff has elected to amend the cause of action in issue with a view to curing any excipiability and that there is, in fact, an opposed application pending in relation to this proposed amendment.

[23]        No court would entertain the granting of an order compelling the filing of heads of argument for an exception which was not ripe for hearing because it had been overtaken by an application for the amendment of pleadings which were the subject matter of the exception.

[24]       The affidavit in the application to strike out is more troubling still. It makes oblique and misleading references to the procedural position stating that the plaintiff has filed heads of argument in “the wrong application” which is a reference to the application to amend.  Most importantly it fails to explain that it is the plaintiff’s view, correctly taken, that the exception was substantively not ripe for hearing and had the potential to become redundant. 

[25]       Furthermore, the order which was sought and granted failed to take account of the fact that it is a rule that a party whose pleading is struck out in an exception is entitled as a matter of course to amend such pleading.^[1]

[26]       In Constantara v BCE Foodservice Equipment (Pty) Ltd^[2] the Court remarked as follows in relation to this rule:

‘Such a rule is both understandable and necessary. Such an exception can never put an end to the dispute if a plaintiff has a viable alternative basis for its claim; even though the original claim is struck down without leave to amend, the plaintiff can always issue a new summons in which the alternative is pleaded. So refusing an amendment is merely a waste of costs. But the plaintiff may be blocked by prescription. In such a case said Corbett CJ in Group Five Building supra at 603A ‘it would be contrary to the general policy of the law to attach such drastic consequences to a finding that the plaintiff’s pleading discloses no cause of action.”

 

[27]       As I have said, the claim in this matter has prescribed and the striking out of the claim without the option of an amendment would be the drastic and consequences described in Constanara. This is generally contrary to the general policy of the law and the Constitution.

[28]       In Capitec Bank Ltd v Mangena and another^[3] it was held that a court was not at liberty to ignore a claim or strike out a defence merely because one of the parties has failed to take an important procedural step. The court held that a court must satisfy itself that the claim or defence sought to be struck out or has no intrinsic merit. Clearly the defence was not considered. It was certainly not considered in the context of the pending application to amend.

 

Conclusion

[29]       Accordingly, the order granted was patently erroneous. This error, to my mind, was brought about by the employment of a process was clearly abusive.

[30]       To my mind and to the extent that it bears examination in the circumstances the explanation for default is accepted.

Costs

[31]       I note that the plaintiff tendered the costs of the application which tender was declined. It was imprudent for the defendant to persist with this application in the circumstances of its own abusive conduct.

[32]       Had the plaintiff notified that it would seek costs on a punitive scale I would have been inclined to grant them. As it is, there was no such notification and neither did I ask to be addressed on why punitive costs should not be granted.

[33]       Accordingly, albeit reluctantly I will grant costs on a party and party scale.

Order

[34]       In all the circumstances I grant the following order:

 

[1]          The judgment of Molahlehi J handed down on 2 August 2022 is rescinded.

[2]          The respondent is to pay the costs of the application

 

___________________________

D FISHER

JUDGE OF THE HIGH COURT

JOHANNESBURG

 

 

Delivered: This Judgment was handed down electronically by circulation to the parties/their legal representatives by email and by uploading to the electronic file on Case Lines. The date of hand-down is deemed to be 13 December 2023.

Heard:                                                               13 November 2023

Delivered:                                                        13 December 2023

APPEARANCES:

For the applicant:                                          Adv Tshegofatso Kgomo.

Instructed by:                                                   Andraos & Hatchett Attorneys.

For the respondent:                                     Adv. Xolani Mofokeng.

Instructed by:                                                   KM Mmuoe Attorneys.

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