Stemela v MEC for Health,Eastern Cape Province (3962/17) [2019] ZAECMHC 4 (12 February 2019)

/ / 2019, News, Procedure


The applicant issued summons against the respondent claiming damages resultant from her treatment by the respondent’s employees at a public hospital. The respondent filed its Notice of Intention to Defend but failed to file a Plea and was subsequently barred. The application for default judgment was withdrawn by agreement and the respondent was afforded 20 days within which to file its plea. Nothing was done, until the respondent filed an exception, to which the applicant responded with a notice in terms of rule 30, alleging that the conduct by the respondent to file an exception whilst under bar, constitutes an irregular step.

The respondent failed to remove the cause of complaint and opposed the application on a number of grounds. The applicant failed to mention the default judgment and the order by agreement, misleading the court as to the facts of the dispute. This was raised by the respondent in its answering affidavit and subsequently by the applicant in its replying affidavit.

The issues before the court was firstly, whether, when the exception was filed, the respondent was under bar and secondly, whether the respondent was entitled to file an exception rather than a plea.


In considering the application, the court outlined that the rules must serve the purpose of providing a mechanism for the expeditious resolution of justiciable disputes between parties, while court orders must be interpreted purposively.

The court held in respect of the first issue, that the effect of the lifting of the bar is that, if the applicant wanted to bar the respondent again, it would have had to file a notice of bar, which it never did and as a result the respondent was not barred from pleading even after the 20-day period had expired.

In considering the second issue, the court took cognisance of the order made by Griffiths AJ in Landmark Mthatha (Pty) Ltd v King Sabata Dalindyebo Municipality & Others: In re African Bulk Earthworks (Pty) Ltd v Landmark Mthatha (Pty) Ltd & Others. It was held that:
“… where a defendant, in response to a notice of bar, delivers an exception, he has taken the next procedural step in the matter and has thus complied with the demand made in the notice of bar. In this regard, it has been held that an exception is in fact a pleading and thus falls squarely within the wording of rule 26.
Griffiths AJ further held that if a defendant was required to elect between excepting or pleading, with the result that if it elects to except it loses its right to plead, it would make a mockery of the exception procedure.

The court was in agreement with Griffiths AJ reasoning, and accordingly found that it was not an irregular step for the respondent to file an exception even if the order only referred to a plea, and the application was dismissed with costs.


This case confirmed the rules relating to the service of a notice of bar in relation to a plea and an exception, and that where a party elects to file an exception, it does not forego its right to plead in the event of the exception being dismissed.

Written by Wesley Pons and supervised by Jenna Bentel, 11 March 2019

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