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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: 1572/2016

In the matter between:

REBECCA STOMPIE MASEKO                                                   Plaintiff (Respondent)

And

MEMBER OF THE EXECUTIVE COUNCIL,                                         

DEPARTMENT        OF EDUCATION,

NORTH WEST PROVINCE                                                            Defendant (Applicant)

JUDGMENT.

GURA J:

Introduction

[1]        The applicant (“defendant”) launched an interlocutory application for relief in the following terms:

1.1         Condonation any late filing of this application;

1.2         Declaring that the plaintiff has failed to comply with the defendant’s notice in terms of rule 30(2)(b) dated 10 March 2017;

1.3         Declaring that the plaintiff’s notice of Bar dated 06 March 2017 is irregular and is set aside, and struck out; Second Defendant;

1.4         Directing the plaintiff to comply with defendant’s notice in terms Rule 35(14) dated 17 February 2017 within 10 days of this order, failing which the plaintiff’s action be deemed to have been struck-off;

1.5         Directing the plaintiff to pay the defendant’s costs in this matter and in the trial including the costs occasioned by the employment of Counsel; and

1.6         __ __ __ .

Common cause facts

[2]        The plaintiff instituted an action against the defendant on 25 October 2017. The action, which is essentially a personal injury claim arises out of the injuries allegedly suffered by the minor child, Tshepo Maseko (0507266054083) in January 2011 at Maumong Primary School, in the Mogwase District, North West Province. The claim is for damages amounting to R 1 400 000.00 instituted by the plaintiff in her alleged capacity as the grandmother and guardian of the minor child.

[3]        On 7 December 2016, the defendant delivered a notice in terms of Rule 36(4) to the plaintiff. The latter then filed its reply to the defendant’s Rule 36(4) Notice. On 21 February 2017, the defendant served a notice in terms of Rule 35(14); the said Notice reads:

            “KINDLY TAKE NOTICE THAT the defendant, requires the following documents to be made available for inspection and allow for the copies thereof to be made within 5 days hereof, which are relevant to a reasonably anticipated issue in the action and which ought reasonably to be in the plaintiff’s possession for purpose of preparing defendant’s plea:

1.    Copy of Minor Child’s Identity Document or Birth Certificate;

2.    Order granting the plaintiff Guardianship over the Minor Child;

3.    X-Ray photographs issued depicting the alleged injuries of the minor as stated in Paragraph 7 of the Particulars of Claim;

4.    Photographs contemporaneous with the dates relevant to the claim and depicting the Minor’s injuries as alleged;

5.    Photographs depicting the minor being on crutches as alleged;

6.    An extract from the hospital indicating the admission of the minor to such hospital;

7.    A copy of the dispatch form or proof of issue of the crutches alleged to have been utilized by the minor;

8.    A report certified by a physiotherapist detailing the injures as alleged;

9.    A photo depicting the donkey cart referred to in the particulars of claim;

10. Medico legal report detailing the particulars of the future medical services, assistive devices; if any, and the medical treatment as well as the estimate cost thereof.

WHEREFORE the defendant affords the plaintiff a period of 5-days to comply with this notice failing which the defendant may bring an appropriate application for relief in the above Honourable Court.”

[4]        On 27 February 2017, the plaintiff delivered its reply to the applicant’s Rule 35(14) notice. It reads:

           “BE PLEASED TO TAKE NOTICE that the plaintiff hereby responds to the   Defendant’s Notice in terms of Rule 35(14), dated 17 February 2017, as follows:-

1.    AD PARAGRAPH 1 THEREOF:

                        The plaintiff attaches; hereto a copy of the minor’s birth certificate as annexure “A”

2.    AD PARAGRAPH 2 THEREOF:

The plaintiff has not been formally appointed as the guardian on behalf of the minor, but is acting as the de facto guardian. A curator ad litem will be appointed in due course to assist the minor further in the action.

3.    AD PARAGRAPH 3 THEREOF:

The plaintiff is not currently in possession of the documents requested and same can be obtained from the Job Shimankane Thabane Hospital. Furthermore, the documents requested is not strictly necessary for pleading.

4.    AD PARAGRAPH 4 TO 5 THEREOF:

To the best of the plaintiff’s knowledge, the documentation does not exist. Furthermore, the documents requested is not strictly necessary for pleading.

5.    AD PARAGRAPH 6 THEREOF:

The plaintiff is not currently in possession of the documents requested and same can be obtained from the job Shimankane Thabane Hospital. Furthermore, the documents requested is not strictly necessary for pleading.

6.    AD PARAGRAPH 7 THEREOF:

The plaintiff is not in possession of the requested documents. Furthermore, the documents requested is not strictly necessary for pleading.

7.      AD PARAGRAPH 8 THEREOF:

The plaintiff is not in possession of the requested documents and if in existence, same can be obtained from the job Shimankane Thabane Hospital. Furthermore, the documents requested is not strictly necessary for pleading.

8.    AD PARAGRAPH 9 THEREOF:

To the best of the plaintiff’s knowledge, the documentation does not exist. Furthermore, the documents requested is not strictly necessary for pleading.

9.    AD PARAGRAPH 10 THEREOF:

The plaintiff is still in the process of quantifying her claim against the defendant and will furnish the defendant with medico-legal in due course.”

[5]        On 8 March 2017 the plaintiff served a Notice of Bar calling upon the defendant “to file its plea within 5 days of receipt of this notice, failing which the defendant will be in default of such pleading and will ipso facto be barred and application will be made to enter judgment with costs of suit.”

[6]        On 15 March 2017 the defendant served upon the plaintiff a notice in terms of Rule 30(2)(b) contending that the plaintiff’s purported Notice of Bar, delivered on 8 March 2017 was irregular and had be to be set aside. The defendant raised the following reasons in support of its Rule 30 Notice:

                           “1.     On 17 February 2017, the plaintiff delivered         a Notice in terms of Rule 30(2)(b) contending the irregularity of the defendant’s request for records to be furnished.

                         2.     On 21 February 2017 the defendant delivered its notice in terms of Rule 35(14) in terms of which the defendant requires listed documents to be made available for inspection and which are relevant to the issues in the action and which ought to have been in possession of the plaintiff.

                           3.      On 27 February, the plaintiff purported to reply to the defendant’s Notice in terms of Rule 35(14). That reply is inadequate and has not properly replied and/or does not constitute a reply contemplated in Rule 35(14) in that:

                                 3.1    The plaintiff only furnished or made available a copy of the Birth Certificate of the minor child, and failed and ignored to furnish the following documents which were requested:

a)    Order granting the plaintiff Guardianship over the Minor Child;

b)    X-ray photographs issued depicting the alleged injuries of the minor as stated in Paragraph 7 of the Particulars of Claim;

c)    Photographs contemporaneous with the dates relevant to the claim and depicting the Minor’s injuries as alleged;

d)    Photographs depicting the minor being on crutches as alleged;

e)    An extract from the hospital indicating the admission of the minor to such hospital;

f)     A copy of the dispatch form or proof of issue of the crutches alleged to have been utilized by the minor;

g)    A report certified by a physiotherapist detailing the injuries as alleged;

3.2    The plaintiff, at paragraph 3, 5, and 7 of its Rule 35(14) reply, replied that it is not in possession of the documents requested by the defendant and sought to direct the defendant to obtain these documents from the Job Shimankane Thabane Hospital.

3.3    The defendant contends that the responsibility in action proceedings to make readily obtainable documents requested in terms of Rule 35(14) lies upon the plaintiff. It cannot be shifted to the defendant, when in fact it is the plaintiff that alleged the injuries it did in the summons and definitely ought to have had either proof or evidence of any such injuries as requested to be verified for purpose of pleading.

3.4    The excuse that the documents required were not necessary for purposes of pleading is fallacious and carries little, if any weight. It is the plaintiff’s case in the summons that there were personal injuries and that the child was sent to a hospital.

3.5    The defendant is unable to plead either admitting or denying same without a simple proof of medical attention, even if this were to be proof that the child was admitted at the alleged Hospital.

4.      Further, the period within a notice of Bar should have been delivered has not begun to run and cannot be raised presently. The Notice to defend was delivered on 21 November 2016 and the period of entering a plea has not begun to run.

5.      The Notice in terms of Rule 35(14) has on the above basis, and also in view of the plaintiff’s failure to furnish the required documents, not been complied with.

6.      The plaintiff has failed and /or ignored, when it was clear to it that it may be unable to properly comply with the Rule 35(14), to apply in the above Honourable Court for condonation for failure to do so, or has failed to bring an appropriate application to declare its reply as adequate for the purpose of compliance.

IN THE PREMISES, the plaintiff’s Notice of Bar is irregular and in terms of the Rules of this Honourable Court, the plaintiff is afforded a period of Ten (10) days within which to remove the cause of complaint failing which, the defendant shall proceed with an appropriate application as contemplated in the Rules of this Honourable Court.”

Points in limine

[7]        The plaintiff raised the following point(s) in limine.

“7.1      It is respectfully submitted that it is trite that upon the receipt of a notice of bar, a defendant is put to an election of either pleading or applying for the extension of time within which it is permitted to file its plea.

 7.2      The delivery of a notice in terms of Rule 35(14) requesting the production of certain documents does not suspend the 5 (five) day period within which the plea was to be filed.”

[8]        Looking at the purported two points in lime, they amount, in my view, to one point in limine as set out in para 7.2 of this judgment. In the heads of argument, the plaintiff side-stepped this burning issue: Does the delivery of a notice in terms of Rule 35(14) have the effect of suspending the time period of five days within which the defendant has to file a plea? In support of its argument, the plaintiff’s Counsel referred this Court to at least two authorities.[1]

[9]        The facts of the Mkhize case are comparable to those in the present matter. After considering various Court decisions, Gorven J reasoned as follows:

                        “[18]    The rules in question nowhere say that delivery of a notice in terms of rule 35(12) or (14) suspends the period referred to in rule 26 or any other rule. There are sections attaching to non-compliance with some parts of rule 35. That of rule 35(12), for example, is that the non-compliant party may not use the documents in question. Where documents have been appropriately referred to, in other words where they are an integral part of the case of the party concerned, the likely result of this sanction would be that party would not be able to prove its case. __ __ __

                        [20]      The defendant says that it has a right to the production of the documents and that this would be negated if the time to deliver a plea was not suspended. This is not so. In the first place, neither Protea Assurance nor Unilever held that the entitlement to the documents was absolute and that, by necessary implication, the time to put up a plea or affidavit was suspended until the notice had been complied with. Secondly, the defendant is not without remedy. As was done in Protea Assurance, and as is pertinently provided for in rule 27(1) and (2), the defendant could have applied to extend the time limits within which to deliver the plea and have brought an application to compel. He chose not to do so.

            [21]      The plaintiff relies on Hawker v Prudential Assurance Co South Africa Ltd, in support of its stance that the rule 35 notice did not suspend the period for delivering the plea. In that matter, further particulars were sought for the purposes of delivering a plea, as was allowed at the time. Further particulars were supplied but were inadequate. The defendant then applied, outside of the time within which to deliver his plea but before any notice of bar was delivered, to compel their delivery. It was submitted that the application was out of time. The court reasoned as follows:

‘It is implicit in Rule 21(1) that the pleading in respect of which further particulars may be requested is incomplete, in the sense that it is envisaged that further particulars are necessary to enable the party requesting the particulars to plead and /or to tender an amount in settlement. Where the words “the particulars” are used in Rule 21(3), this must be construed as meaning “the particulars envisaged in Rule 21(1) “for, until such particulars are furnished, the party who requested the further particulars must be regarded as being unable to plead and/or to tender an amount in settlement.

Applying this reasoning to the application at hand, the court went on to hold:

‘It follows from the aforegoing that in my view a defendant is not obliged to take any further step when particulars have been refused or inadequate particulars have been furnished and the particulars are strictly necessary for the purpose envisaged by Rule 21(1). Should the plaintiff in such circumstances, and upon expiration of the 14-day period mentioned in Rule 21(3), deliver a demand for plea in accordance with the provision of Rule 26, the defendant has an election. He can either attempt to plead, or he can make application in terms of Rule 21(6) for an order compelling the plaintiff to furnish the particulars requested. The latter application would naturally be coupled with an application for an order extending the barring period.’

          [22]      The reasoning, accordingly, is that, without the requested necessary particulars it was not possible to plead. In other words, the defendant was entitled to the particulars before being required to plead. This mirrors the submission in the present matter that the defendant was entitled to inspect and copy the documents before being obliged to plead. Hawker, however, held that if the defendant was placed on bar, he was obliged either to plead or apply to compel the particulars. Where he did plead, the bar would not fall. Where he did not do so but brought an application, the court considered that it was axiomatic that an application to extend the times to plead will accompany the application to compel. If this were not done, the clear implication is that the defendant would find himself barred from delivering a plea and subject to a default judgment. It is clear that the court did not regard the bringing of the application (let alone the request for further particulars) as suspending the time period under rule 26.

            [23]      This reasoning commends itself to me as applying equally to the present matter. The delivery of the rule 35 notice did not suspend the period in which the defendant was obliged to deliver a plea or other document referred to in rule 22. When he was confronted with a rule 26 notice, he was put to an election. He could either have done his best to plead and so have defeated the bar or he could have applied to extend the time within which to plead and compel production of the documents for that purpose. If he had pleaded, it would have been open to him to apply to compel delivery of the documents and, if so advised, to thereafter seek to amend his plea. Since he did not plead or apply to extend the period in which to do so, he was ipso facto barred on 2 June 2015. There is therefore no basis for contending that setting down the application for default judgment amounted to an irregular step. The interlocutory application must be dismissed as regards that relief.”

(Footnotes omitted)

[10]     Similarly, with reference to the present case, upon receipt of the Notice of bar, the defendant neither pleaded nor applied to extend the time within which to plead. This Court finds that the delivery of a Rule 35(14) notice did not suspend the period in which the defendant was obliged to deliver a plea or other document referred to in rule 22.

[11]     It is accordingly the finding of this Court that the defendant is under Bar. The Notice of Bar dated 6 March 2017 is not irregular, in fact it complies fully with the Rules. The plaintiff, having served a Notice of Bar, was not obliged to comply with the defendant’s Notice in terms of Rule 30(2)(b). This Court is therefore unable, in the facts of this case, to direct the plaintiff to comply with the defendant’s ill-fated Rule 35(14) notice.

[12]     In relation to costs, the plaintiff did refer the defendant to authorities, including Mkhize case to point out to the defendant that Rule 35(14) does not suspend the running of time relating to when to tender a plea. The plaintiff gave the defendant this legal advice before the defendant could bring the present application. Despite that advice, the defendant went ahead to issue the current application.

[13]     In my view, it (defendant), did so at its own peril. It would be unfair under the circumstances for the defendant to leave the applicant out of pocket without any valid cause. The defendant knew the legal position of the effect of Rule 35(14), on the running of time to file a plea even before it (defendant) decided to launch this application. In the circumstances, I make the following order:

            13.1         The plaintiff’s point in limine is upheld;

            13.2         The defendant’s application is dismissed with costs;

            13.3         Such costs to be taxed on the scale as between attorney and client.

SAMKELO GURA

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION

APPEARANCES:

DATE OF HEARING:                              07 DECEMBER 2017                                

DATE OF JUDGMENT:                           04 OCTOBER 2018

COUNSEL FOR PLAINTIFF:                  MR MATHAPHUNA

COUNSEL FOR DEFENDANTS:            ADV VAN DEN BERG

ATTORNEYS FOR PLAINTIF:                 MOLOTO WEISS INC        

ATTORNEYS FOR DEFENDANTS:         SMIT STANTON

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