SENN FOODS (PTY) LTD v MARINA PROPERTY DEVELOPMENT & MANAGEMENT (PTY) LTD 2005 (1) BLR 203 (HC)

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Citation: 2005 (1) BLR 203 (HC)
Court: High Court, Francistown
Case No: Civil Trail No F402 of 2004
Judge: Chinhengo J
Judgment Date: January 12, 2005
Counsel:
I Seloko for the applicant. S Mganga for the respondent
Flynote
Practice and procedure - Pleading - Exception - When appropriate - Exception only taken if pleading vague and  embarrassing or lacking averments necessary to sustain action or defence - Exception challenge to legal validity of claim - Manner of objection to irrelevant material contained in pleading an application to strike out, not exception.
Headnote

The respondent claimed arrear rentals plus penalty interest as a result of a breach of an agreement of lease by  the applicant. The applicant had entered an appearance to defend by had not filed its plea within the period permitted by the rules of court. The respondent then served a notice of intention to bar on the applicant. The applicant wrote a letter complaining that the respondent had wrongly annexed certain documents to its particulars of claim. It called upon the respondent to remove this cause of complaint failing which it would file an exception to the particulars of claim. The respondent refused to remove the cause of complaint and sought to perfect the bar. The applicant  served a notice of exception on the respondent and the respondent applied for judgment in default of plea. An interlocutory judgment was entered against the applicant. The applicant sought to have the bar removed and the default judgment rescinded.

 

Held: (1) The procedure for barring an opponent should ideally be that the notice of intention to bar should first   be filed with the registrar before it was served upon the other party. This made it an official court document and  placed it beyond doubt when the notice was filed.

 

(2) A validly perfected notice of intention to bar had to bear two stamps by the registrar - the first when it was 'delivered' and the second when the bar was perfected. The bar in the instant matter had been validly perfected.

 

(3) The applicant had not been entitled to file its exception after the bar was perfected. In any event, the filing of  the exception had not been the correct procedure to adopt. The applicant was concerned with the removal of evidence in a pleading, but had filed a notice to except, which was only taken if a pleading was vague and embarrassing or lacked the averments necessary to sustain an action or defence. An exception was taken as a challenge to the legal validity of a claim. If a pleading contained irrelevant matter, the proper manner of objection was an application to strike out.

(4) The evidence put forward by the applicant was inadequate to sustain an application for rescission. A defence which was not bona fide or good at law could not avail an applicant for rescission of judgment or for removal of a bar. The applicant had failed to show good and sufficient cause for rescission.

Case Information

Cases referred to:  

 

Chicole and Another v The Attorney-General and Another (CC F530/95), unreported

 

Lee v Won Hosepipe Manufacturers and Another (Misca 42/99), unreported

 

Smith, NO v Brummer, NO and Another; Smith, NO v Brummer 1954 (3) SA 352 (O)  

 

Thusang Investments (Pty) Ltd v Lion Properties (Pty) Ltd [2004] 1 B.L.R. 171

 

Van Aswegen v Kruger 1974 (3) SA 204 (O)

Western Industrial Estate (Pty) Ltd v Maxisave (Pty) Ltd [2001] 1 B.L.R. 406  

 

APPLICATION for rescission of judgment. The facts are sufficiently set out in the judgment.

 

I Seloko for the applicant.

S Mganga for the respondent.

Judgment

CHINHENGO J:  

 

By writ of summons taken out of this court on 19 April 2004, the respondent claimed from the applicant the sum of P14 620.53 and interest thereon at the rate of 10 per cent per annum a temporae morae. It also claimed penalty interest at the rate of 15 per cent per month on overdue rentals calculated from 30 November 2003 to the date of payment in full. It is common cause that this debt arose out of the breach by the applicant of the terms of an agreement of lease  entered into between the parties on 13 February 2002 in respect of the respondent's property known as lot no 6, lot 21573 Francistown and terminated by the applicant on 30 October 2003.

 

The respondent alleged in its particulars of claim that in terms of the agreement of lease, the applicant was required to ensure that at the end of the lease period the property was restored to the respondent in the same  condition as it was leased, fair wear and tear excepted and that all the bills for electricity and water were paid in full. The respondent further alleged that the applicant did not give vacant possession of the property at the end of October 2003 but remained in occupation for the month of November 2003. The respondent therefore claimed the sum mentioned above which is made up as follows - P6 912.50 being damages arising out of the costs incurred by the respondent in restoring the property to the condition in which the applicant should have left it, P1 283.68 the cost of labour, P5 500 being rental for November 2003 and P524.35 for electricity and water which remained unpaid at the end of November. The respondent annexed to its particulars of claim certain documents: being a copy of the agreement of lease, a letter by the applicant to the effect that the lease agreement terminated on 30 October and that it had paid the amount of rent up to that date, and invoices and/or receipts and copy cheques to show that the respondent had paid the water and electricity bills.

 

The applicant entered an appearance to defend the respondent's action on 5 May 2004. It did not file its plea within the period permitted by the rules of this court and because of further developments in the matter the plea  has not been filed to date. The respondent then served on the applicant a notice of intention to bar on 1 June. In response the applicant wrote a letter and delivered it also on 1 June complaining that the respondent had wrongly annexed to its particulars of claim the documents which I have already referred to. It contended that the documents constituted evidence which in terms of Order 20 rule 3(1) of the Rules of the High Court (Cap 04:02)  (Sub Leg) must not be pleaded. It called upon the respondent to remove this cause of complaint failing which it would file an exception to the particulars of claim.

 

The respondent refused to remove the cause of complaint and communicated its decision to the applicant by letter dated 16 June.

Thereafter the respondent sought to perfect the bar of 1 June by filing the same with the  registrar on 21 June. On 15 July the applicant served a notice of exception on the respondent's attorneys at 8.23 am and filed the same with the Registrar at 9.00 am. At 11.30 am the respondent applied for judgment in default of a plea. On 27 July the registrar entered interlocutory judgment against the applicant. The order reads:  

 

     'No plea having been entered to the writ of summons herein, and the Defendant duly barred, it is this day adjudged that the Plaintiff recover against the Defendant damages to be assessed on a date and time to be set.'

It was after this order was made that the applicant lodged the present application and sought the following relief:

 

     '2.1     The bar in this matter should be and is hereby removed and uplifted.  

     2.2     The default judgment granted by the above Honourable Court on 27th July 2004 be and is hereby rescinded and set aside in terms of Order 48 or 31 Rule 13 alternatively that it be set aside in terms of the common law.

     2.3     The respondent pay the costs of this application on attorney/client scale and alternatively that the said costs be paid de bonis propriis.'

 

The approach adopted by the applicant is liable to create confusion. He approached this application as if it was essentially an application for the removal of the bar which, if removed, would result in the interlocutory judgment falling away ipso facto. The respondent's affidavit and Mr Mganga's approach and submissions were less confusing, if at all, because he regarded the present application as essentially one to rescind the interlocutory  judgment. I prefer Mr Mganga's approach as it seems to me to be much neater and correct.

 

As I understand it the applicant's argument is as follows. First, the bar was not properly perfected because the procedure adopted by the respondent for its perfection was flawed. In this regard the applicant stated that the  notice of intention to bar did not contain a provision in terms of which the perfection is effected. The portion that the applicant averred was missing was that part of Form 15 which reads:

 

     'A copy of this notice was handed by me (or by ... a clerk in my employ) to ... (a partner of, or a clerk in the employ of the abovenamed firm) on the ... day of ... 20 ..., at ... a.m./p.m.  

     To: The Registrar of the High Court Francistown/Lobatse. The time limited by the Notice set out above having expired, we hereby bar the Plaintiff/Defendant in terms thereof.

     DATED at ... this .... day of .... 20 ....'

It was not clear to me what the applicant was concerned about precisely if the notice of intention to bar served  upon it did not have the portion I have just quoted. It was submitted by the attorneys for both parties that the practice in this jurisdiction is to serve a notice of intention to bar without it having been issued by the registrar by date-stamping it before it is served on the other party and only have it filed with the registrar and date-stamped  G  after the days within which a plea must be filed have lapsed. If this indeed is the procedure it does not seem to me to matter that the portion of Form 15 referred to above need be a part of the notice because it is only intended to satisfy the registrar that the notice has been served and that the time within which to file a plea has lapsed and the party concerned is barred. The applicant annexed to its papers a copy of the notice which indicates that the notice was faxed to them on 1 June 2004 and that the date on which the bar was perfected was not inserted. On the basis of that copy the applicant's attorney argued that the bar was not properly perfected.

The applicant's argument in regard to the perfection of the bar is not sustainable. It is not in dispute that the applicant received a faxed copy of the notice of intention to bar on 1 June 2004 and in terms thereof it had four days within which to file its plea. It did not file a plea and on 21 June the respondent perfected the bar by filing  the notice with the registrar. The notice in the court file is proper in every respect. It states that the notice was sent by fax and shows that on 21 June when no plea was received the respondent filed it with the registrar and thereby barred the applicant.

 

The applicant's attorney also submitted that the respondent was not entitled to bar it after the respondent had  received its letter or complaint on 1 June. In this connection the applicant's attorney referred me to the decision in Western Industrial Estate (Pty) Ltd v Maxisave (Pty) Ltd [2001] 1 B.L.R. 406. In that case Lesetedi J stated at p 410 of the judgment as follows:

 

     'An application to strike out any portion of [a] pleading or a filing of any exception to a pleading has to be preceded by the  C  requisite notice. The plaintiff was served with such a notice but openly ignored it and went ahead to perfect the bar without first informing the defendant of its reply or answer to the notice. The notice is part of the process of excepting to a pleading. A party who has been served with a notice in terms of Order 20, rule 20(1) cannot ignore the said notice and proceed with another step before the expiry of the notice period. It matters not that the party being given the notice holds  the view that the notice is misconceived. It must first communicate its attitude to the other side before taking any further step. The party giving the notice will, if it still maintains its position, file an exception to the pleading or apply to a court or a judge to strike out any portion of the pleadings, as the case may be. It will then be for the court or judge to make a decision on the matter.'  

He went further at p 411 and stated that:

 

     'I find therefore that the notice was a pleading and a step in the process of excepting as contemplated by Order 25, rule 4 and of the Rules of the High Court that the bar was not only defective but also invalid.'  

I agree with what the learned judge stated in these passages. There were elements of the case before him which serve to distinguish it from the present case. He commented at p 409 of the judgment that it was 'patently clear ... that many of the complaints raised [by the defendant] were not frivolous'. In the passage first quoted above, the learned judge stated that a party to whom notice is given must communicate his attitude to the other side before taking any further step. A perusal of the judgment also shows that the defendant acted 'swiftly' in responding to the plaintiff in respect of every step which the latter took. Not only was the applicant in the present case making a complaint in respect of what were quite clearly innocuous documents attached to  the declaration but it was threatening to take an improper procedure, as I shall show later, of excepting where an application to strike out was the appropriate procedure. As to the correctness of attaching a copy of the agreement of lease, see Thusang Investments (Pty) Ltd v Lion Properties (Pty) Ltd [2004] 1 B.L.R. 171 at p 176. Had an application to strike out the other documents been timeously made, I have no doubt that it would have succeeded. At this stage of the proceedings the concern with these other documents would appear to me to be  misplaced. The case of Chicole and Another v The Attorney-General and Another (CC F530/95), unreported, which the applicant cited is also distinguishable on the facts. In that case, as stated by Mosojane J at p 3 of the cyclostyled judgment, the exception had been set down for hearing the plaintiff filed the notice of intention to bar and an application for default judgment. The learned judge then determined that it was improper to seek to bar  an excipient before his exception was disposed of. He proceeded to strike out the notice to bar and the application for judgment. The facts in the present case are quite clearly different as I have endeavoured to show. The respondent in the present case communicated its attitude before it took the further step of applying for judgment. It notified the applicant of its attitude by letter dated 16 June which was received by the  respondent on 24 June. Instead of swiftly taking the action it threatened the applicant did not file its exception until July 15. Although the respondent may be accused of rushing to file for judgment on the morning on which it received the notice to except, its attitude is understandable having regard to the seemingly dilatory tactics of the applicant in filing the exception and also in view of the other weaknesses of its case as I shall explain later herein.  

 

I think that the procedure for barring an opponent should ideally be that the notice of intention to bar should first be filed with the registrar before it is served on the other party. That of course not only makes it an official court document but it also places it beyond doubt when the notice was filed.

 

Upon the expiry of the days allowed the other party to file its pleading, which must be calculated from the date of  service of the notice, the party barring the other will then complete the portion of Form 15 concerned with service and insert the date on which the bar is perfected. In my view therefore the notice must bear two stamps by the registrar, the one being that of the date when the notice was issued and the other the date on which the bar is perfected. At the very minimum I think that in terms of Order 27 rule 1, the party giving notice of intention  to bar must file the notice with registrar immediately after service because that rule requires such party to deliver the notice. 'Deliver' is defined in Order 1 rule 3 to mean 'serve copies on all parties and file the original with the Registrar'. Order 27 rule 2 provides that on the expiry of the time limited by the notice, the party who has served the notice may bar the opposite party by filing a copy of the notice duly completed at the registry.Either way, practice apart, it seems to me that a validly perfected notice of intention to bar must bear two stamps by the registrar - the first when it is 'delivered' and the second when the bar is perfected. Having regard to the practice in this jurisdiction which the parties' attorneys both acknowledged, the bar was in my view validly perfected.

 

Having effectively barred the applicant on 21 June, the way was clear for the respondent to apply for judgment. It did so on the same day on which it received the applicant's notice to except. The applicant contended that the respondent was not entitled to apply for a judgment in default of a plea after it had received the notice to except. It also contended that it was wrong for the registrar to have entered judgment against it after the notice to except was filed. I have already commented upon this point but in saying this, the

applicant may also have had in mind the provisions in the rules of this court dealing with irregular proceedings.  Order 33 rule 1 provides that a party to any cause in which an irregular or improper step or proceeding has been taken by any party may apply to court to set it aside provided that such party has not taken any further step in the cause with knowledge of the irregularity or impropriety. Order 33 rule 1 does not apply to the present case. The applicant filed a notice to except long after it was barred and when it should have known that it was barred for failure to file its plea. The notice to except was not an irregular or improper step or proceeding within the meaning of Order 33 rule 1, which in my opinion applies to a situation for example, where the opposite party has filed an appearance to defend or a notice of opposition or an opposing affidavit after the expiry of the period  C  for taking such a step and before the other party has taken any subsequent step in the proceedings concerned. The applicant in casu filed the notice to except after receiving a notice of intention to bar and after it had in fact been barred. I am satisfied that the applicant was not entitled to file its exception after the bar was perfected. Its argument that the respondent should not have applied for interlocutory judgment or that the registrar should not have entered such judgment is not sustainable. For the reason that the applicant should not  D  have lodged the notice to except in the first place, I shall not consider the submissions made on its behalf in regard to the exception. But in case I am to be faulted for not considering the substance of the exception there is another reason for taking a dim view of the „exception filed. The filing of the exception was not a correct procedure to adopt. The applicant was concerned with the removal of evidence in a pleading which by Order 20 rule 3(1), it was entitled to do. Erroneously it filed a notice to except. An exception is taken if a pleading is either vague and embarrassing or lacks averments necessary to sustain an action or a defence and it is taken when the objection goes to the root of the opponent's claim or defence. The object or aim of excepting is to settle a case in a cheap and easy fashion or to protect oneself against serious embarrassment. In other words an exception is taken as a challenge to the legal validity of a claim. If a pleading contains scandalous or vexations or irrelevant matter, the proper manner of objection is to apply to strike out. The annexing of documents containing evidence to an application may properly be objected to in terms of Order 20 rule 3(1), but the correct manner of doing so is by way of an application to strike out and not by way of an exception. See  Beck's Theory and Principles of Pleading in Civil Actions (5th ed) at pp 32-33. The applicant's objection herein did not go to the root of the respondent's action and so it was incorrect for the applicant to file an exception.

 

The approach which in my view the applicant should have adopted in this case was to have sought a rescission of judgment and not to have raised the upliftment of the bar as the main issue for determination by the court. I  am aware that in Beck's Theory and Principles of Pleading in Civil Actions at p 180 it is stated that a bar may be lifted even after default judgment has been granted. This comment is made in reference to the South African procedure rules which are not available for me to peruse. I do not think that the situation is the same under our rules. Order 48 deals with the variation or rescission of an order or judgment erroneously sought or granted or one with an ambiguity or a patent error or one which was granted as a result of a mistake common to both parties.

 

Order 31 deals specifically with judgments entered in default of a pleading. Rule 13 thereof provides that a judgment given in default under this Order or under Order 30 may be set aside by the court if good and sufficient cause is shown. There is no rule which directly entitles a defendant to apply to uplift a bar after a default judgment has been granted and it is my view that the correct approach would be to apply for the  rescission of judgment and advert to the irregularities, if any, connected with the bar to show good cause for the rescission application.

 

In any case the requirements for the upliftment of a bar in terms of Order 27 of the Rules of the High Court and for the rescission of a judgment entered in default of a pleading are largely the same. Reference was correctly  made to Smith, NO v Brummer, NO and Another; Smith, NO v Brummer 1954 (3) SA 352 (O) which lays down the principles on which a bar may be removed. These principles coincide to a great extent with the requirements for a rescission of a judgment. See Lee v Won Hosepipe Manufacturers and Another (Misca 42/99), unreported. It is trite law that an application for rescission of a judgment must show good and sufficient cause. This involves having to give a reasonable explanation for the delay in filing a pleading and having to show  that the application is bona fide and so is the defence. A court must in this regard as with an application to remove a bar be satisfied that there has been no reckless or intentional disregard of the rules of court and the applicant's case is not obviously without merit. An application to uplift a bar similarly requires the applicant to show the same good cause as in an application for rescission of a default judgment because in terms of Order 27 rule 5 he has to place before the court an affidavit of merits and other sufficient grounds for the removal of  the bar. Such an affidavit of merits must contain sufficient detail to enable the court to decide whether the application is bona fide and so it must set out the applicant's defence on the merits and the facts on which he relies for his defence. This means that an affidavit of merits must disclose facts which constitute a defence that  is good at law - see Van Aswegen v Kruger 1974 (3) SA 204 (O).

 

The applicant's defence is that the respondent's premises in issue here were occupied by the applicant's employee, one Ewen van Eeden. The applicant averred that it had advised him to vacate the premises at the end of October but he did not do so until the end of November and so any claims by the respondent in respect  of rent for the month of November or for any damage that was occasioned to the premises during that month is for the account of Ewen van Eeden. The applicant's defence appears at para 15 of the founding affidavit where it states in part that:

 

     'The applicant's defence therefore is that the rental account or bill for the month of November 2003 is for the said Ewen  van Eeden in the sum of P5 500, as well as the utilities bills in the sum of P924.35. These claims total P6 424.35 ie made up of P5 500 and the P924.35. The invoices on the utilities, inter alia, also confirm that the account was for E van Eeden and not the applicant as they appear on the annexures marked "C" and "D" and attached to the respondent's particulars of claim.'

I find no merit at all in this defence. It is not a bona fide defence and as such the bona fides of the applicant are  also called to question. The applicant admits that it entered into a lease agreement with the respondent and that it thereby assumed all the obligations in the lease agreement. There is no doubt that one of its obligations was to give vacant possession of the premises in the condition stipulated in by agreement at the end of the lease period. It was also one of its obligations to pay for the water and electricity consumed during the currency  of the lease. It admits that Ewen van Eeden was its employee who it must have permitted to occupy and reside at the premises. There was no agreement between the respondent and Ewen van Eeden. He was obviously not privy to the agreement of lease. There is no basis on which he could have assumed the applicant's obligations towards the respondent. The mere fact that the applicant advised Ewen van Eeden that  C  the lease had come to an end and that he should vacate the premises by the end of October did not make him a party to the lease agreement. Similarly the fact that the utilities bills were in his name is a colourless factor.

 

It is the inadequacy of the defence put forward by the applicant that is crucially fatal to this application. A defence which is not bona fide or good at law cannot avail an applicant for rescission of judgment or for removal of a bar. In my view, the applicant has failed to show good and sufficient cause for rescission and would similarly have failed in the application to remove the bar.

 

The interlocutory judgment granted on 27 July 2004 deals only with the illiquid portion of the respondent's claim. The registrar entered judgment in its favour to 'recover against the defendant damages to be assessed on a date and time to be set'. It did not enter judgment in favour of the respondent in respect of the liquidated portion of its claim. This however is for the respondent to address.

In the result it is ordered that:

 

     1.       the application is dismissed.  

     2.       the applicant shall pay the costs of this application.

Application dismissed.

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