Article written by Wade Jacobs, Candidate Attorney, checked by Jayna Hira, Associate and released by Charlotte Clarke, Partner at Schindlers Attorneys
27 August 2021
This case deals with the issue of whether a Defendant may raise an exception to a Plaintiff’s amended particulars of claim, specifically where the Defendant has not objected to the Plaintiff’s notice of intention to amend.
In this matter, the Plaintiff instituted an action against eighteen Defendants, wherein which he sought an order declaring his removal as a director to be unlawful, reinstating himself as director, and declaring the First to Third Defendants to be delinquent directors in terms of Section 162(2) and 162(5) of the Companies Act 71 of 2008.
In the course of exchanging pleadings, the Defendants delivered their notice in terms of Rule 23(1) of the Uniform Rules of Court (the “Rules”), wherein which they indicated their intention to take an exception to the Plaintiff’s particulars of claim, as same lacked certain averments and further, were allegedly vague and embarrassing. In order to remedy the aforementioned, the Plaintiff delivered a notice of intention to amend in terms of Rule 28.
The Defendants did not object to same, and the Plaintiff thereafter effected the amendments by delivering the amended particulars of claim. On 17 February 2021, the Defendants delivered their second notice in terms of Rule 23(1), indicating their intention to take an exception to the Plaintiff’s amended particulars of claim on the basis that same lacks the necessary averments to sustain the Plaintiff’s claim, and further, were allegedly vague and embarrassing. The Plaintiff launched the present Application in terms of Rule 30(1), seeking an order setting aside the Defendants’ second notice in terms of Rule 23(1) as an irregular step.
The Plaintiff contends that the Defendants are not entitled to take an exception to the amended particulars of claim, as the Defendants had an opportunity to object to the proposed amendment. By their failure to object to the proposed amendment, the Defendants have waived their right to take an exception to the Plaintiff’s amended particulars of claim. The Plaintiff further states that they shall be subjected to a perpetual cycle of notices to except by the Defendants.
The Defendant submits that the Plaintiff failed to file an affidavit, in support of the Rule 30(1) Application, and has thereby failed to provide proof of prejudice and facts supporting the Plaintiff’ contention that the Defendants have waived their right to take an exception to the amended particulars of claim.
Rule 28(8) reads as follows:
“(8) Any party affected by an amendment may, within 15 days after the amendment has been effected or within such other period as the court may determine, make any consequential adjustment to the documents filed by him, and may also take the steps contemplated in rules 23 and 30.” (our emphasis added)
It was confirmed by the Court that the words used in statute are only the starting point and that the provisions have to be considered in light of the context, the purpose, and any ancillary background material. Despite the aforementioned considerations, there are instances where words used in a statute are capable of only one meaning being attributed thereto.
The Court held that, Rule 28(8) has prescribed only one meaning. A party that has been affected by an amendment can only mean the party that is receiving the amended pages. It would be incorrect to state that a party effecting an amendment is also affected by such an amendment and so entitled to take steps contemplated in Rule 23.
The Court held that the Plaintiff is usually the last party to take a step in the matter, and therefore, it is ill-advised to consider that a Plaintiff can take an exception to a pleading filed before the amendment. As such, the Defendants have a procedural right to object to the Plaintiff’s proposed amendment, but their failure to do so does not deprive them of their procedural right to take an exception to the amended particulars of claim.
The Court further held that the preferable route would be for a party receiving a notice in terms of Rule 23(1) to amend its pleading or persist on the same papers, and have the Court determine the merits of the exception raised. The interests of justice would not be undermined, as the Plaintiff has remedies placed before it, should a Defendant raise numerous notices in terms of Rule 23(1). It is not necessary to speculate about the preceding actions of the Defendant if the Plaintiff were to seek to amend their particulars of claim.
It was thus ordered that the Application be dismissed, with costs.
This decision sets out the intricacies of raising a notice in terms of Rule 23(1) of the Uniform Rules of Court (the “Rules”), specifically where a party has put forth numerous notices in terms of Rule 28. It clearly defines the procedures and remedies available to both the Plaintiff and the Defendant, in a similar context.