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dispute resolution | 14 Jul 2020
BY Aslam Moosajee AND Vishana Makan
ENSight

dispute resolution


Is the service of a notice arguing that the particulars of claim is vague and embarrassing a valid response to a notice of bar?

The recent judgment of the Western Cape High Court, Hill NO and Another v Brown, provided a useful reminder of the differences between a notice and a  pleading in the High Court and that a defendant seeking to contend that a summons is vague and embarrassing cannot move at a leisurely pace when responding to a summons.

In this matter, the defendant failed to timeously deliver a plea in response to a combined summons, prompting the plaintiff to deliver a notice of bar  in terms of rule 26. A notice of bar requires the defendant to file a plea or exception within five days, failing which the defendant will be prevented from doing so, without special leave of the court.

In response to the notice of bar, the defendant delivered a rule 23(1) notice arguing that the plaintiff’s particulars of claim were vague and embarrassing and therefore defective.

The court had to decide whether the rule 23(1) notice was a valid response to the notice of bar. The court concluded that the delivery of such a notice in response to a notice of bar constituted an irregular step and set the notice aside.

In coming to its conclusion, the court reiterated that when faced with a combined summons, a defendant has:

  1. 10 days from service of the summons to deliver a notice of intention to defend in terms of rule 19; and
  2. within 20 days after serving the notice of intention to defend, to file their plea (with or without a counterclaim) or exception (with or without an application to strike out).

A notice in terms of rule 23(1) contemplates two types of exception: firstly that the particulars of claim are vague and embarrassing, and secondly that they lack averments necessary to sustain a cause of action. Where a defendant raises an exception on the grounds that the combined summons is 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 detailed the well-established principles underlying the fact that an exception is a “pleading”, and like a plea, a properly drafted exception ought to conclude with a prayer for relief. Both a plea or an exception constitutes a valid response to a notice of bar. However, a rule 23(1) notice which argues that the particulars of claim are vague and embarrassing and affords a plaintiff an opportunity to remove  alleged causes of complaint, is not a pleading, but a notice. It  is therefore not a proper response to a notice of bar.

After declaring the defendant’s rule 23(1) notice an irregular step and setting it aside, the court reminded the defendant that he could proceed with in 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.

This case highlights the importance of timeously delivering a notice in terms of which a defendant intends to argue that the particulars of claim is vague and embarrassing and therefore defective. A defendant cannot adopt a leisurely approach if the defendant intends to contend that the particulars of claim are vague and embarrassing.

 

Aslam Moosajee

Executive | Dispute Resolution

amoosajee@ENSafrica.com

+27 82 461 5917

 

Vishana Makan

Associate | Dispute Resolution

vmakan@ENSafrica.com

+27 66 493 2372