Case summary written by Snazo Tuswa and checked by Jordan Dias
On 15 April 2020, the Plaintiff served the Defendant with a notice of bar in terms of Rule 26 of the Uniform Rules of Court as the Defendant had failed to timeously deliver a plea in response to a combined summons. A notice of bar requires a defendant to file a plea or exception within five days; failing which the defendant will be barred from doing so, without special leave of the Court.
In response to the Plaintiff’s notice of bar, on 22 April 2020, being the last day of the five day as specified in Rule 26, the Defendant delivered a Rule 23(1)(a) notice. The Defendant contended that the Plaintiff’s particulars of claim were vague and embarrassing and therefore defective.
The Plaintiff contended that the notice in terms of Rule 23(1)(a) delivered by the Defendant was an irregular step that should be set aside in terms of Rule 30(1).
The Court was required to determine whether the rule 23(1) notice was a valid response to the notice of bar.
The Court held that when a Defendant is served with a summons the following is applicable:
- The Defendant has 10 days from service of the summons to deliver a notice of intention to defend in terms of rule 19; and
- The Defendant is required within 20 days from delivery of its notice of intention to defend, to file a plea, with or without a counterclaim or exception, without an application to strike out.
The Court went on further to state that notice in terms of rule 23(1) contemplates two types of exceptions. Firstly, that the particulars of the claim are vague and embarrassing, and secondly, that they lack the necessary averments to sustain a cause of action. In circumstances where a Defendant raises an exception on the grounds that the particulars of claim are vague and embarrassing, a rule 23(1) notice must be served within 10 days of receipt of the combined summons, affording the plaintiff an opportunity to remove the cause of complaint within 15 days.
The Court held that an exception is a pleading, because like a plea, a properly drawn exception concludes with a prayer for relief. Further, the Court held that both a plea and an exception constitute a valid response to a notice of bar. However, a notice in terms of rule 23(1)(a) (affording the Plaintiff 15 days to remove an alleged cause of complaint) is a notice, and therefore, claims no relief. Where the plaintiff fails to remove the alleged cause of complaint and the defendant files an exception, it is the exception, not the notice that the Court adjudicates. Therefore, rule 23(1) which argues that the particulars of the claim are vague and embarrassing is not a proper response to a notice of bar.
The Court held that the Defendant did not file a proper response to the notice of bar and should be barred. The Court reminded the Defendant that he could proceed with an application in terms of rule 27 to have the bar lifted but the Defendant would have to demonstrate good cause to have the notice of bar lifted.
The Court concluded that delivery of the notice in terms of rule 23(1), in response to the notice of bar, constituted an irregular step, and the notice was set aside.
The court highlighted the importance of timeously delivering a notice wherein a Defendant intends to argue that a particular claim is vague and embarrassing and therefore defective. The defendant cannot simply adopt a leisurely approach if it intends to contend that the particulars of the claim are vague and embarrassing.