in the high court of south africa gauteng … · with the plaintiff's request for the further...

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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DATE: 11/9/2015

CASE NO. 21706/2011

REPORTABLE:NO

OF INTEREST TO OTHER JUDGES: YES

In the matter between

REGENT INSURANCE COMPANY LTD APPLICANT/PLAINTIFF

and

FLINKDINK TRANSPORT 1st RESPONDENT/1st DEFENDANT

FRANCOIS JACOBUS SWANEPOEL 2nd RESPONDENT/2nd DEFENDANT

JUDGMENT

MOOSA AJ.

http://www.saflii.org/content/terms-use

[1] The plaintiff/ applicant Regent Insurance Company Ltd, instituted an action against

Flinkdink Transport CC the 1st defendant I 1st respondent and

Francois Jacobus Swanepoel, the 2"d defendant/ 2"d respondent jointly and

severally for payment of the sum of R 742 440, 00 together with interest at a rate of

15% per annum from °'1 5 April 2005, alternatively payment of the said sum against the

1st defendant only, further alternatively an order declaring the plaintiff is

entitled to take possession of MAN 5200 TRUCK

TRACTOR with engine number 398038403 B2C1 and chassis number

AAT812407PX10249.

[2] This action was defended and a plea was filed by the defendants on 11 July 2011.

In April 2014 the plaintiff amended it's particulars of claim. On 23 June 2014 the plaintiff

then requested further particulars for the purpose of trial. In view of the defendants'

failure to favour the further particulars as sought, the plaintiff then brought an

application to compel the defendants to comply with such request. Sometime during

September 2014 the defendants previous attorneys withdrew and its present attorneys

of record were appointed.

[3] On 18 October 2014 an Order was granted by the Honourable Justice Rabie

compelling the defendants to reply to the plaintiff's request for further particulars within

20 days from the date when such Order was granted. The defendants had to comply

with the plaintiff's request for the further particulars by 5 November 2014. Despite the

lapse of the 20 day period the defendants failed and/ or refused to adhere to the Order.

[4] Subsequent to such failure by the defendants, the plaintiff instituted an application in

terms of rule 21(4) for the striking out of the defendants' defence. Herein referred-to as

the striking out application. The defendants thereafter on 18 December 2014 filed a

document under the heading filing of opposing affidavit to the striking out application.

This document is manifestly a notice of motion and encompassing a counter

application.

[5] The plaintiff in turn, on 25 March 2015 filed a replying affidavit and on 10 April 2015

the defendants then filed a rule 6(5) application as well as a notice of intention to amend

their counter application. On 15 April 2015 the plaintiff delivered its objection to the

defendants' proposed amendment to the counter application. On 23 April 2015 the

plaintiff filed an affidavit opposing the defendants' application to file a further affidavit.

[6] On 29 April 2015 despite the plaintiff's objection, the defendants launched the

amendment application. On 13 May 2015 the plaintiff then filed its affidavit opposing

the amendment application. An application in terms of rule 6(5) (e) was brought by the

defendants in terms of which they sought leave to file a further affidavit in the striking

out application. This application is referred to as the rule 6(5) (e) application.

[7] The plaintiff thereafter filed its objection to the defendants' proposed amendment to

the counter application and on 23 April 2015 served and filed an affidavit opposing the

defendants' application to file a further affidavit. The defendants then launched the

amendment application and which application was opposed by the plaintiff, which in

turn then filed an affidavit on 13 May 2015, opposing such application. This application

is referred to as the amendment application.

[8] The three opposed applications referred to above, are pending before this court,

all of which are ancillary to an action instituted by the plaintiff against the defendants

and under the same case number.

[9] Rule 21(4) provides essentially that if the party is called upon to furnish any

particulars, fails to deliver same timeously or sufficiently, the requesting party may apply

to court for an order for the delivery or for the dismissal of the action or the striking out

of the defence of the defaulting party, whereupon the court may make such order as it

deems meet.

[10] A court will only strike out the defence or claim if it is found that the defendants in

casu has deliberately and contemptuously disobeyed the order. The following three (3)

points warrant mention with regards to the ambit of

rule 21(4):-

[10.1] the rule applies not only where there has been a complete failure

to furnish particulars, but also in the ostensibly less serious instances namely,

failing to comply timeously or sufficiently;

[10.2] secondly, it is clear that the ultimate remedy for the dismissal of

an action or the striking out of a defence is a drastic remedy;

[10.3] thirdly, it is clear that the power to grant such a remedy is

discretionary and that the discretion must be exercised judicially.

[11] In terms of the striking out application the plaintiff sought an order as follows:-

[11.1] that judgment be granted in favour of the plaintiff in the sum of R742

440.00 against the1st and 2nd defendants jointly and severally, the one to pay

the other to be absolved;

[11.2] the defendants be ordered to pay interest on the amount of R742 440, 00

at the rate of 15.5% per annum from 15 April 2005 until date of final payment;

[11.3] pay the costs of the application as well as the cost of the action.

[12] With regard to the striking out application, the defendants raised the following

defences; that the request for further particulars was filed:-

[12.1] subsequent to the plaintiff amending its particulars of claim; but

[12.2] before the plaintiff had made discovery; and

[12.3] before the defendants had pleaded to the amended particulars of claim.

[13] Therefore in view of all of the above the further particulars requested are no

longer relevant and which is referred to as the first defence. I find it difficult to reconcile

this on the basis that, the defendants' counsel G. F. Ackermann submitted to the court

that the plaintiff never took issue with, why it is not incumbent to answer the request for

further particulars. Since the applicant only insisted that there should be adherence to

the Order of the

Honourable Justice Rabie. The defendants looses sight of the fact that

adherence to a Court Order supersedes any and all other issues. Whether the further

particulars are no longer relevant or not, is not a valid opposition. Of relevance is the

adherence and obedience of a Court Order. This is the principle of legality, an incident

of the rule of law.

[14] The further submission made is that, the defendants have always contended that

the plaintiff will be entitled to file a second request for further particulars, after the

defendants filed their amended plea and counterclaim, subsequent to the filing of the

contract of insurance. It is so that the Order of the Honourable Rabie J does not have

the effect of a final judgment and may be varied by the court on good cause shown. I

have difficulty in finding any good cause shown on the part of either of the defendants.

Therefore, I cannot reconcile this submission by the defendants regarding this line of

defence.

[15] Insofar as it concerns the second defence the defendants can only file a

consequential amendment to their plea, once the plaintiff has discovered which is in

turns necessitated by the plaintiff's alleged non-compliance with the provision of Rule

18(6) in preparing its particulars of claim. This amendment seems to be the pivotal

turning point in the defendants' refusal to answer to the plaintiff's request for further

particulars. The attachment of an insurance contract, when there in an entitlement of

indemnification in all its respects, comes into force when the particulars of claim are

couched in contractual terms and not on fraudulent misrepresentation as in casu.

[16] In the first particulars of claim the plaintiff's material allegations are that; it had

insured certain vehicles of the 151 defendant, from 9 March 2005 until 15 April 2005.

The 1st defendant misrepresented that the insured vehicles had been hijacked on 3

March 2005 and the vehicles that were hijacked were not the vehicles insured and the

hijacked vehicles were subsequently recovered and returned to the 1st defendant.

[17] In the subsequent amended particulars of claim the plaintiff avers that; it had

insured certain vehicles of the 1st defendant and from 9 March 2005 until 15 April 2005,

the 1st defendant misrepresented to it that the insured vehicles had been hijacked on 3

March 2005. In fact the vehicles that were allegedly hijacked were not hijacked at all but

were in the 1st defendant's possession albeit discreetly with a false registration number.

[18] Therefore both sets of allegations are the same and essentially the

following:[18.1] it had insured certain vehicles of the 1st defendant.

[18.2] from 9 March 2005 until 15 April 2005 the 1st defendant misrepresented to

the plaintiff that the insured vehicles had been hijacked on 3 March 2005.

[19] In fact the vehicles that were insured and which the 1st defendant represented to

the plaintiff were hijacked, were not hijacked at all.

[20] On the strength of the aforesaid and in each of its particulars of claim the plaintiff

alleges that consequent upon the misrepresentation of the 1st defendant it suffered

damages as it paid out an amount of R742, 440.00 pursuant to four agreements of loss

which it entered into with the 1st defendant in respect of the insured vehicles, acting

upon the said fraudulent misrepresentation.

[21] It is of importance to note that:

[21.1] the request for further particulars comprises 5 paragraphs.

[21.2] paragraph 5 of the initial particulars of claim is essentially identical to

paragraph 5 of the amended particulars of claim.









[21.7] the only paragraph of the plaintiff's request for further particulars that was

affected by the amendment is paragraph 4 thereof.

[22] The particulars sought from the 1st defendant are as relevant under the amended

particulars of claim as they were under the previous particulars of claim. At no stage did

the defendants challenge the relevance for purposes of trial of the particulars sought,

but contend that the request for further particulars pertains to the previous particulars of

claim. The defendants, at their own choice did not bring to their plea a consequential

amendment pursuant to the plaintiff amending its particulars of claim.

[23] Moreover, on a proper consideration of the two sets of particulars of claim, the only

new factual allegation to which the defendants have to answer in the amended

particulars of claim is that during April 2008 it came to the knowledge of the plaintiff that

the defendants were still in possession of the truck tractor and that same was under

registration number [.....]. An honest answer would be simple, either the defendants

were still in possession of the said Truck Trucker as at April 2008, bearing the said

registration number, or they were not.

[24] More than a year has lapsed and still the defendants have not amended their

plea. I am in agreement with the submission made by the plaintiff's counsel M. C.

Erasmus SC. that on the pleadings as they stand the particulars requested are most

definitely relevant.

[25] Regarding the second defence the defendants essentially allege that they are only

required to plead to the amended particulars of claim once the plaintiff has made

discovery of the documents which it intends to use at the hearing of the trial.

[26] The defendants would only thereafter be obliged to answer to the request for

further particulars or an alternative request for further particulars to be filed by the

plaintiff.

[27] The defendants' case is manifestly that there are certain documents which are of

paramount importance with regard to the dispute between the parties which they

have not had sight of and in the absence thereof they cannot plead to the amended

particulars of claim.

[28] At the outset and against the argument forwarded above, this defence is fatally

defective as the defendants on their own version have not only already pleaded to

substantially the same facts as contained in the amended

particulars of claim but also opposed the plaintiff's summary judgment

application under oath. The defendants contend that in motion proceedings the

affidavits filed also constitute evidence, I am in agreement therewith. In Swissborough

Diamond Mines v The Government of Republic of South Africa 1999 (2) SA

279 the determination of the law relating to the contents of affidavits were considered, I

take cognisance thereof, that affidavits serve not only to place evidence before the court

but also to define the issues between the parties. This is usual and routine.

[29] The defendants do not require discovery before they can answer to the amended

particulars of claim. The rules are clear as to their own terms with regards to the service

and filing of pleadings and as to when a litigant must make discovery.

[30] Rule 22(1) expressly provides that where a defendant has delivered a notice of

intention to defend, he shall within 20 days after the service upon him of a declaration or

within 20 days after delivery of such notice in respect of a combined summons, deliver a

plea with or without a claim in reconvention, or an exception with or without an

application to strike out.

[31] Rule 28(8) provides that a party affected by an amendment to a pleading

may, within 15 days after the amendment has been affected or within such other

period as the court may determine, make any consequential · amendment to the

documents filed by the affected party. These are the only rules providing for the time

periods with regards to the service and filing of a plea.

[32] As regards discovery, there are similarly two rules which are applicable.

[32.1] The first rule is rule 35(1) which provides that any party to any action may

require any other party thereto, by notice in writing to make discovery on oath

within 20 days of all documents and

tape recordings relating to any matter in question in such action (whether such

action is one arising between the party requiring discovery and the party required

to make discovery or not), which are or have at any time been in the possession

or control

of such other party. Such notice shall not, save for the leave of a judge, be given

before the close of pleadings.

[32.2] The second rule with regards to when discovery must be made in general

is rule 37(1) which provides that a party who receives a notice of the trial date of

an action shall, if he has not yet made discovery in terms of rule 35, within 15

days deliver a sworn statement which complies with rule 35(2).

[33] The effect of this sub-rule is that a party to an action is obliged to make

discovery upon receipt of the notice of the trial date of an action even where such party

was not under rule 35(1) required to make discovery under oath.

[34] No provision is made in the rules that discovery should take place before a party

is required to plead. To the contrary an order that discovery be given before the close of

pleadings, i.e. before a party has pleaded, will only be made where there are

exceptional circumstances which requires such an order.

lnerater v Minkowitz 1951 (2) SA 125 (W);

Cremhold's Estate v Cohen Bros 1923 OPD 125;

Teperson v Hoffman (1910) 20 CTR 88;

Ehlers v Malmesbury Board of Executors (1909) 26 SC 406.

[35] Such an order must obviously be preceded with an application to court for the

appropriate direction, which has not been instituted by the defendants nor have they

caused the necessary notices in this respect to be delivered.

[36] The defendants at no stage delivered a notice as contemplated in rule 35(14) which

expressly provides that after the appearance to defend has been entered, any party to

any action may for the purposes of pleading require any other party to make available

for inspection within five (5) days a clearly specified document or tape recording in his

possession which is relevant to a reasonably anticipated issue in the action and to allow

a copy or a transcription to be made thereof.

[37] The unanswerable question is why such a notice was not delivered before the filing

of the defendants initial plea and why the defendants did not, even under the direction

of their new of attorneys, file such a notice before the expiry of the 15 days which it had

to file a consequential amendment to its plea, pursuant to the amendment to the

particulars of claim. The only answer is that either the documents are not necessary so

as to enable the defendants to plead to the particulars of claim or that the defendants

had or have the documents in their possession.

[38] On the defendants own version when their erstwhile attorneys' file contents were

given to their current attorneys in the form of four lever arch files, containing all the

documents relevant in the matter, the said documents not only pertained to the civil

action but also to the criminal proceedings instituted against the defendants consequent

upon a complaint of fraud lodged by the plaintiff.

[39] This should be considered against the fact that the defendants have already at this

stage:

[39.1] put up a version previously in regard to the bulk of the allegations contained in

the particulars of claim;

[39.2] put up a defence under oath in the summary judgment application in the absence

of these documents;

[39.3] defended the criminal prosecution.

[40] The only logical inference to be drawn from these allegations is that the defendants'

erstwhile attorneys and now the defendants' present attorneys of record had the

documents in their possession in order to consider their defence at the summary

judgment stage.

[41] Now, when the noose tightens, they rebuff, seemingly that they have these

documents in their possession. The defendants contend that their current attorneys

were appointed during or about 9 September 2014 and that they noted from the

voluminous documents in their possession, that the plaintiff has affected an amendment

to which there was no subsequent plea.

[42] On the defendants own version its current attorneys received four lever arch

files from their previous attorneys of record and they also consulted with counsel briefly

in regard to the matter.

[43] Conveniently the defendants allege that it was impossible for their legal

representatives to acquaint themselves with the voluminous documents. However,

the defendants expressly state that it appeared that the application for insurance, the

insurance contract and their claim forms were needed to consider the request for

further particulars and they could not find at that stage, any discovery by the plaintiff in

this matter at all.

[44] The defendants do not state that the documents which they deem necessary is not

contained in the said four lever arch files or the file contents of their previous attorney.

What they in fact say is that during September 2014, before the application to compel

was instituted, their attorneys were unable to peruse the four lever arch files for a period

of more than a month in order to ascertain whether or not the documents were there,

bearing in mind that they filed a plea to the initial particulars of claim as well as an

affidavit resisting summary judgment, both of which contained their defence. All of the

above in documented in a letter addressed to the plaintiff's attorney of 9 September

2014. It is clear that the defendants intend to shape their defence and version in

accordance with the documents discovered which in itself raises serious questions

regarding the manner in which the defendants conduct litigation. Whilst the plaintiff,

notwithstanding the aforesaid, made full discovery during December 2014.

[45] The defendants have explored all avenues and they now wish to contend that the

plaintiff's discovery is irregular or inappropriate. The defendants however do not inform

the court that they did not deliver a notice in terms of rule 35(3). Consequently I also

find that this defence has no merit either.

[46] The defendants further wish to submit that the plaintiff has not complied with rule

18(6) in that it has failed to annex to the particulars of claim the policy schedule and

insurance agreement between the parties pertaining to these vehicles. Similarly neither

a notice in terms of Rule 30A nor an exception was filed by the defendants in this

respect. The necessity to have sight of these documents only arose during November

2014.

[47] Having regard to the above it is noted that rule 18(6) provides that a party who in

his pleading relies upon a contract shall state whether the contract is written or oral and

when and where and by whom it was concluded and if the contract is written, a true

copy thereof or the part relied on shall be annexed to the pleading. This Rule only

applies in instances where a plaintiff pursues a cause of action based on contract to

sustain its cause of action.

[48] The defendants misunderstand the plaintiff's cause of action to be based in

contract and which is patently incorrect .The plaintiff pursues its action against the

defendants based on a fraudulent misrepresentation perpetrated against the plaintiff by

the 1st defendant. The cause of action is evidently based on fraud and not in contract

and therefore rule 18(6) does not apply under these circumstances. I find this to be so

fundamental and for the defendants to persist that the insurance contract be attached is

unintelligible.

[49] The Defendants submit that consequent upon the contents of paragraphs 3.1 to

3.5 of its affidavit in support of the rule 6(5)(e) application , the court should condone

the filing of a further affidavit in the proceedings. The factors that need to be considered

in exercising the court's discretion to either allow the filing of further affidavits or not, are

inter alia the following:-

[49.1] the reason why the evidence was not produced timeously;

[49.2] the degree of the materiality of evidence;

[49.3] the possibility that it may have been shaped to relief the pinch of

the shoe;

[49.4] the balance of prejudice to the plaintiff, if the application is refused and the

prejudice to the defendants, if it is granted;

[49.5] the state where the particular litigation has reached;

[49.6] the healing balm of an appropriate order as to costs;

[49.7] the general need for finality in judicial proceedings;

[49.8] the appropriateness or otherwise in all the circumstances are visiting the

fault of the attorney upon the head of his or her

client.

[50] If a court is satisfied on these points, it will generally be inclined towards allowing

the affidavits to be filed. In this regard the plaintiff relies upon the following decisions:

Watloo Meat & Chicken SA (Pty) Ltd v Sylvie Luis (Pty) Ltd 2008 (5) SA 461 (C) at

437 A - B;

Standard Bank of SA Ltd v Cewpersadh 2005 (4) SA 148 (C) 154 D - F;

Kasiyamhuru v Minister of Home Affairs 1999 (1) SA 643 (W) 650 D;

Dawood v Mahommed 1979 (2) SA 361 (D) at 365 A - C;

Cohen N.O v Ne/ 1975 (3) SA 963 (W) 966 A - B;

Parow Municipality v Joyce and McGrecord Ltd 1973 (1J SA 937 (C) at 939 A - C;

Transvaal Racing Club v Jockey Club of SA 1958 (3) SA 599 (W) 604 A-F.

[51] The court must exercise the discretion and a party cannot take it upon himself or

herself to simply file further affidavits without first having obtained the leave of the court

to do so.

Watloo Meat & Chicken SA (PtyJ Ltd Sylvie Luis (PtyJ Ltd supra 472 H -

Sealed Africa (Pty) Ltd v Kelly 2006 (3) SA 65 (W) 67 B - E; Standard Bank of SA

Ltd v Cewpersahd supra, 153 H.

[52] Where further affidavits are filed without the leave of the court, the court can

regard such affidavits as pro non scripto.

South Peninsula Municipality v Evans 2001 (1) SA 271 (C) 283 A - H;

Dhladhla v Erasmus 1999 (1) SA 1065 (LCC) 1072 D;

Nampesca (SA) Products (Pty) Ltd v Zadere 1999 (1) SA 886 (C) 892 J -

893 A;

Dawood v Mahommed supra, 364 G - H

[53] It is only in exceptional circumstances that a fourth set of affidavits will be received.

South Peninsula Municipality v Evans supra, 283 A - H;

Nampesca (SA) Products (Pty) Ltd v Zadere supra 892 J - 893 A; Kasimanyuru

judgment at 649 H - 650 D.

[54] Special circumstances may exist where something unexpected or new emerged

from the applicant's replying affidavit.

Afrique Oil (Pty) Ltd v Ramadani Investments CC 2004 (1) SA 35 (N) at 38 J - 39 A.

[55] It is essentially a question of fairness to both sides as to whether or not further sets

of affidavits should be allowed.

Milne N.O v Fabric House (Pty) Ltd 1957 (3) SA 63 (N) at 65 A.

[56] The plaintiff's counsel makes the following submissions which are convincing and

sustainable and which I am in agreement with. Namely that the defendants introduce

facts for which they require leave to introduce into the record simultaneously with the

filing of their affidavits in support of its application for leave to do so.

[56.1] No reason is given why the evidence was not produced timeously,

specifically as part and parcel of the defendants answering affidavit;

[56.2] the bulk of the evidence which the defendants seek to introduce is

irrelevant for purposes of the relief pursued by the plaintiff in terms of the

application to strike out or their counter

application.

[56.3] the facts which the defendants seek to introduce on its own version is

aimed at providing a basis for an order that the

plaintiff be compelled to comply with rule 18(6) and to sustain a cause of action

and to procure the setting aside/rescission of the court order compelling the

defendants to answer to the plaintiff's request for further particulars;

[56.4] the healing balm of an appropriate order as to costs as well as the general

need for finality in the judicial proceedings are not impacted upon pursuant to the

intention to file a further

affidavit;

[56.5] it is reiterated that this affidavit has already been filed notwithstanding the

court not having granted leave to do so;

[56.6] from a proper reading of the replying affidavit, the only material

fact addressed in this affidavit which is not contained in the founding affidavit is

the confirmation that the plaintiff indeed discovered pursuant to the defendants

order to compel dated 1 December 2014;

[56.7] this fact was already, at the stage of the defendants filing their answering

affidavit, within the knowledge of both the

defendants and their attorneys and they should have disclosed this in answer

should they have wanted to place same before the court, which they did not.

They themselves elected not to take the court into their confidence by placing

these facts before the court and now, in hindsight they cry prejudice as a

result thereof.

[57] I find that the content of the replying affidavit in the strike out application does not

warrant the filing of any further affidavit. Therefore I am also in agreement with the

submission that the application for leave to file the further affidavit should be dismissed.

[58] Regarding the defendants' application to amend its counter application and its

intended application to set aside the court order is to introduce into the

counter application a prayer for the rescission I setting aside of the court order.

The further submission made by the plaintiff's counsel is that the judgment is sought to

be rescinded because the defendants consented to the order being taken whilst they

were acting on an honest mistake on their part. The alleged honest mistake is

essentially that the defendants were unaware that the plaintiff had amended its

particulars of claim and that the request for further particulars pertained to the erstwhile

particulars of claim. However, the plaintiff's request for further particulars expressly

states in the introduction that:

"The plaintiff did amend its particulars of claim and the defendants did not file an

amended plea. The questions posed herein are with reference to plaintiff's initial

particulars of claim read with defendant's plea thereto."

[59] Further, already during September 2014, before the Order of the Honourable

Justice Rabie J. was granted, the defendants indicated that the request for further

particulars had to be answered which naturally implies that they had read it and had

knowledge of it. Therefore it is inconceivable how the alleged mistake could have

occurred. No explanation is advance therefor. Consequently any relief for the rescission

of the order sought to be introduced would be without legal basis and fatally flawed. It is

trite that the issue proposed to be introduced by the amendment must be a triable issue.

Which in itself is an issue which can be proved by the evidence foreshadowed in the

application for the amendment, will be viable or relevant, or which, as a matter of

probability, will be proved by the evidence foreshadowed.

Trans-Drakensberg Bank Ltd v Combined Engineering (Pty) Ltd 1967 (3) SA 632

(D) at par 641A;

Barnard v Barnard 2000 (3) SA 741 (C) at 754F

Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd 2005 (6) SA 23 (C).

[60] Save in exceptional circumstances an amendment which would render a pleading

excipiable should not be allowed.

See Krischke v RAF 2004 (4) SA 358 (W) at 363B;

Alpha (Pty) Ltd v Carltonville Ready Mix Concrete CC 2003 (6) SA 289

(W).

[61] To the extent that the defendants persist that the order should be set aside

consequent upon the alleged mistake, a common mistake on behalf of one of the

litigants do not fall under the category where the defendants consented to the order in

justus error as contemplated in Rule 42 of the Uniform Rules. Such a mistake has to

be common to all the litigants concerned, which the mistake complained of is not.

Sibanyoni KR Transport Services v Sheriff Transvaal High Court 2006 (4) SA 429

(T) at

432A-B;

De Wet v Western Bank Ltd 1979 (2) SA 1031 (A) at 1044;

Go/Jach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd

1978 (1) SA 914 (A) at 922C-D.

[62] Even if the mistake complained of is that of the court then and in such event, the

order can only be set aside if the order was granted consequent upon a fraud

perpetrated against the court as the court becomes functus officio once the order has

been granted.

First Consolidated Leasing Corp v McMullin 1975 (3) SA 606 (T) at 608.

[63] In terms of the letter of 9 September 2014 from the defendants' attorney and on

the defendants' own version the request for further particulars needed to be answered.

On 31 October 2014 the defendants' attorney confirmed in writing that a consultation

was scheduled with the defendants with the specific view of preparing an answer to the

request for further particulars.

[64] On 7 November 2014 the defendants' attorney confirmed that the defendants would

be in a position to answer the request for further particulars by 19 November 2014. On

18 November 2014 the defendants' attorney states that the defendants take note of

the fact that the further particulars had to be provided within 20 court days and further

states " but now realised that such order should never have been given, taking

into account the amendment . "

[65] Notwithstanding the defendants have not instituted a proper application for the

rescission of the order, on 15 July 2014 the defendants requested the plaintiff to provide

it with further particulars to which request, the plaintiff forthwith proceeded and complied

with as set out in a letter dated 1 December 2014 addressed by the plaintiff's attorneys

to the defendants' attorneys.

[66] Accordingly, I find that the defendants are wilfully refusing to answer

the plaintiff's request for further particulars and the defendants wrongly submit that

their refusal is justified. Further that the defendants' wants to shape its version and

evidence along the lines of what the prevalent documents provide for and in accordance

with what it concerns the plaintiff would be able to prove. This approach is of an altitude,

correctly submitted by the plaintiff's counsel to outline the defendants' evidence now

that the shoe is pinching.

[67] The defendants have literally resorted to all and any measures available to it, to

prevent the striking out application from proceeding as well as to avoid answering the

plaintiff's request for further particulars.

[68] I further find that not one of the measures employed by the defendants have any

merit. The defendants clearly it seems, is to delay the finalisation of the matter for so

long as possible. There is no reason for the defendants' blatant refusal to answer the

plaintiff's request for further particulars and that is that a truthful answer would constitute

a concession of the merits. This matter has run its course and that the circumstances

call for an order as sought by the plaintiff in the striking out application.

[69] No prayer as contained in the counter application has any merit and on no basis

has a case been made out for the relief as sought by the defendants in that application.

When the circumstances above are considered against the circumstances taken into

account in the matter of :-

Leask v East Cape Forest Products CC t/a Highbury Treated Timbers (1285107)

(2008) ZAECHC 171 - unreported judgment by Plasket J.

the plaintiff has made out a proper case for the relief pursued in terms of the striking

out application.

In conclusion, I find that the plaintiff has made out a case for the striking out of the

application. On that basis I had granted an Order on 25 June 2015 as follows:-

1. Granting judgment in favour of the applicant/plaintiff in the sum

of R742 440, 00 against the first and second defendants/ respondents jointly and

severally the one to pay the

other to be absolved;

2. Interest on the amount of R742 440, 00 at the rate of 15.5% per annum from

date hereof to date of final payment;

3. Dismissing the first respondent's I first defendant's counterclaim with costs;

4. Costs of this application;

5. Costs of the action.

______________

E. I. MOOSA AJ.

Heard on 17-18 June 2015

Judgment delivered on: 11 September 2015

Appearances:

For: The Plaintiff - Adv. M.C.Erasmus SC.

Botha Attorneys

c/o Friedland Hart Solomon and Nicolson.

For: The Defendants - Adv. G.F.Akermann

Claassens Van Niekerk Inc. Attorneys

c/o Loubser Van der Walt Inc. Attorneys.

in the high court of south africa gauteng … · with the plaintiff's request for the further...

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