SIP 412 – Lecture 1:

Defective Processes and Non-Compliance with the Rules:

▪ Deals with defects in pleading.
▪ Action proceedings, ends in judgement and execution stage.
Remedial Procedures to Address Defective Pleadings:
o Application to strike out.
o Exception.
o Application to set an irregular step.
o Enforcing compliance and condoning non-compliance with the rules.
o Amendment of pleadings.
High Court Rule 23(1) and Magistrate Court Rule 19(1):
o An exception may be taken to a pleading if the pleading:
- Is vague and embarrassing.
→ “A pleading is vague and embarrassing when it can be read or interpreted in
any number of ways-in other words, when material averments are unclear or
ambiguous. This type of embarrassment is substantial (cannot be cured).”
→ Afforded an opportunity to rectify the pleading.
- Lacks averments which are necessary to sustain an action or defence.
→ “If the plaintiff has failed to plead an allegation which is a necessary ingredient
of the cause of action, or if it does not justify the legal conclusion or the prayer,
the defendant may except to the pleading.”
→ Not obliged to afford an opportunity to rectify the pleading.
- Bad in law.
→ “The claim is based on the contention that the law recognizes no such claim. “
→ Not obliged to afford an opportunity to rectify the pleading.
→ Successful exception will dispose of the matter entirely.
Exception:
o May only be taken to a pleading, cannot be taken to an affidavit.
o May be taken in a combined summons but not a simple summons.
o An exception can be taken against another exception.
o An exception must set out the grounds of exception.
o An exception must contain a prayer that either the Plaintiffs claim be dismissed, or
the Defendant’s plea be set aside.
Procedure to taking an exception:
o High Court Rule 23(1) and Magistrate Court Rule 19(1).
o Vague and Embarrassing:
- Deliver a notice.
- Afford the opposing party 15 days to remove the cause of complaint.
- Excipient must deliver the notice of exception within 10 days of the date on
which the opposing party delivers a reply to the notice to remove the cause of
complaint.
o Pleading does not disclose a cause of action or defence:
- Excipient is the plaintiff; the plaintiff will have 15 days after the service upon him
of the plea in which to except to the defendant’s plea.
- Excipient is the Defendant then within 20 days to except to the Plaintiff’s
particulars of claim.
Application to Strike Out or “Motion to Expunge”:
o Appropriate where a party objects to a word, a sentence or a paragraph in the
opposing party’s pleading or affidavit on the basis that it is vexatious, irrelevant or
superfluous.
Difference between exception and application to strike out:
o Exception goes to the root of the entire claim or defence.
o Application to strike out goes to individual sections to be removed.
Grounds for Striking Out:
Beinash v Wixley → 2 requirements must be satisfied:
1. Matter sought to be stuck out must be scandalous, vexatious or irrelevant.
2. Court must be satisfied that if the matter were not struck out the party seeking
relief would be prejudiced.
Defining the Terms:
o Scandalous Averment:
- Allegations which may or may not be relevant, but which are so worded as to be
abusive or defamatory.
o Vexatious Averment:
- Allegations which may or may not be relevant but are so worded as to convey an
intention to harass or annoy.
o Irrelevant Averments:
- Allegations which may or may not be relevant but are so worded as to convey an
intention to harass or annoy.
- Averment must be relevant to an issue.
Procedure for an Application to Strike Out:
o Notice of application must be served on the opposing party within the time allowed
for the filing of any further pleadings.
o High Court Rule 6(5)(f) and Magistrate Court Rule 55(1)(j)(i) & 55(1)(j)(ii).
o Short form of notice of motion is used.
o Grounds of prejudice must be set out in the affidavit accompanying the notice of
motion.
o Respondent may then respond to these allegations.
The irregular step:
o High Court Rule 30 and Magistrate Court Rule 60A:
- A mechanism by which a party to a cause may set aside an irregular step taken
by an opponent.
o Generally any step or proceedings which is improper in that it is not sanctioned by
the Rules of Court.
o If a prospective applicant has taken a further step in the litigation process the
applicant will lose the right to set aside the irregular step.
Kopari v Moeti → Court held that a further step is a step which at one stage or another
affects the development of the suit as a whole or is some act which advances the
proceedings one stage nearer completion.
o Examples:
- When a proper power of attorney has not been filed.
- When a simple summons is defective.
- When a proper service of a summons has not occurred.
- When an address for service of documents has not been set out in the
summons.
- When a pleading is not signed in accordance with the relevant rule or does not
comply with the formal requirements as prescribed in the rules.
- When the particulars of claim in a damage action does not comply with High
Court Rule 18(1) or Magistrate Court Rule 6(1).
- When notice of intention to defend is delivered irregularly or out of time.
- When an urgent application has been brought but no reason for urgency has
been described in the supporting affidavit.
- When there is a premature enrolment.
- When review proceedings are brought in terms of the action procedure and not in
terms of High Court Rule 53.
- When an irregular notice of bar has been served in provisional sentence
proceedings.
- When lengthy affidavits have been filed in terms of High Court Rule 43 or
Magistrate Court Rule 58.
- When a proper notice of taxation has not been given.
- When a notice of appeal is defective.
- When a defendant intends to amend a plea in order to introduce a counterclaim.
Procedure for Setting Aside and Irregular Step:
o Applicant must not have taken a further step in the matter with knowledge of the
irregularity.
o Within 10 days of becoming aware of the irregular step, the applicant must deliver a
notice affording the opposing party an opportunity to remove the cause of
complaint.
o If the opposing party fails to remove the cause of complaint, the applicant must
deliver an application within 15 days after the expiry of the second period
mentioned.
Barring the High Court:
o Associated with a default judgement but can also be used to prevent the delivery of
further pleading in an action.
o Requires a notice of bar in order to obtain a default judgement or may be obtained
ipso factio (automatically).
o Notice of bar:
- Must happen before replication.
- Is when a party fails to deliver a pleading within the prescribed time period, the
opposing party must serve notice of bar on the defaulting party to direct the
defaulter to deliver the specified pleading within 5 days of receipt of notice.
- High Court Rule 26 → Should the defaulting party fail to comply within 5 days,
the defaulting party will be ipso factio be under bar and prevented from delivering
the pleading.
o Ipso Facto Bar:
- Must happen after replication.
- Defaulting party who fails to deliver a replication or subsequent pleading within
the prescribed time period thereof is under bar automatically.
- No notice of bar is required.
o High Court Rule 27(1) and 27(2) → The court is authorised to condone the non-
compliance of High Court Rule 27(3), resulting in the discharge of bar or extension of
time.
- Applicant must show good cause.
Grounds for Granting Condonation and Extension of Time Re Discharge of Bar:
Smith No v Brummer No and Another → Court reaffirmed its position and stated that
good cause may be granted when:
- Reasonable explanation for the applicant’s default.
- Application is bona fide and has not been made with the intention of delaying the
opposing party’s claim.
- There has been no reckless or intentional disregard for the rules.
 - Opposing party will not be prejudiced by the extension of time or condonation of
the rules.
Non-Compliance with the High Court Rules:
o High Court Rule 30A → Compel compliance with a rule when a party has failed to
take a required procedural step.
- May be used in a wide sense.
o When a defaulting party fails to comply with a rule, request or notice → The other
party must notify the defaulter.
o Should the defaulter fail to comply within 10 days of notice, an application may be
made to the court.
Barring in Magistrates’ Court:
o Delivering a plea should be done in terms of Magistrate Court Rule 12(1)(b).
- Failure requires the plaintiff may deliver a written notice of bar to a defendant
who has given notice of intention to defend but failed to deliver a plea within the
prescribed time limit.
o Notice of bar obliges the defendant to deliver the plea within 5 days of receiving the
notice.
- Failure to deliver the plea, they will be automatically barred from entering a plea.
o Parties may agree to extend the period and failure to adhere to the period, the
defendant is barred from pleading.
o Declaration must be delivered in terms of Magistrates Court Rule 15(4) and 15(5).
- Failure will result in the defendant serving notice of bar on a plaintiff who failed
to deliver a declaration.
o Discharge of a bar:
- There is no procedure for lifting of a bar placed on a plea or declaration in terms
of the Magistrates Court.
- Extension of time is applied for in terms of Magistrates Court Rule 60(5).
Non-Compliance with the Magistrates Court Rules and Condonation:
o Magistrates Court Rule 60:
- Contains general provisions for non-compliance with the rules and with time
limits for other errors.
- Ensures that simple or technical errors of procedure do not defeat the party’s
claims unless the rules specifically provide that the error will be fatal.
- (2) provides that when a procedural step or request in terms of a provision of
rules is not fully complied with, the court may on application and with prior
notice to the opposing party order proper compliance with the rules within a
specific time period.
o Magistrate Court Rule 60(3):
- The court may be approached again for legal relief on application.
o Magistrate Court Rule 60(4):
- Determines that the court may, in respect of any application made in terms of
Magistrate Court Rule 60(2) and 60(3) order such suspension of proceedings
may be necessary.
o Magistrate court has the discretion in relation to non-compliance and consider
multiple of factors.
o Magistrate Court Rule 60(7) and 60(8):
- Relates to obvious spelling errors, figures or dates provided the other party has
not been misled, the court may grant the necessary relief.
Extension of Time Periods and Condonation of Short Service:
o Magistrate Court Rules 60(5):
- Provides for the extension of any time limit before or after expiry of the
prescribed time limits.
- Application must be written and substantiated by good cause.
o Magistrate Court Rule 60(6):
- Short service means that a notice or process has been served, without the
courts leave within a period of time much shorter than the compulsory days
allowed by the rules.
 Copies and Inspection:
o High Court Rule 35(12) and Magistrates Court Rule 23(13)(a):
- Any refence to a document or tape recording in pleading that is not provided
must be provided to the other party.
o High Court Rule 35(14) and Magistrates Court Rule 23(15):
- Specified document or tape recording for inspection that is in issue, must be
given for inspection for 5 fays for purposes for pleading.
o High Court Rule 36(4) and Magistrate Court Rule 24(4):
- Damages claim, within 10 days furnish copies of medical records.