In the matter between:

and

JUDGMENT

DAVIS. J

The defendant in a notice of motion initially applied for the following relief;

"1.1 Setting aside the plaintiff's notice of bar dated the 18th of January 2008 an appfication for judgement of default dated 8 February 2008;

1.2   Directing the platntiff to comply with the provisions of     Rule   18(6)   as   tt was called upon to do so in terms of the defendant's   notice   in   terms   of   Rule 30(A) dated 22   January 2008;
1.3	Granting the defendant leave to reapply on these papers duly supplemented for further relief in the event of the plaintiff failing to comply with orders sought in 1.2 above within ten days;
1.4	Directing the plaintiff to pay the costs hereof.

2. Alternative to 2.1 condoning the defendant's failure to respond to the plaintiffs notice of bar dated 18 January 2008.
2.2	Uplifting the bar pursuant to the plaintiff's notice of bar dated 18 January 2008 and setting aside the notice of bar an application for judgment by default delivered pursuant thereto.
2.3	Condoning the late delivery of the plaintiff's notice in terms of Rule 30(A) dated 22 January 2008.

2.4 Directing the plaintiff to pay the costs hereof only in the event of it opposing same."

It appears to be trite law that two requirements are necessary to be established prior to such an application being successful.
1.	a reasonable explanation as to the failure to pose the notice of bar;
2.	a measure of particularity to be shown by the applicant in the case relating to the merits of its case. Indeed I shalf return to both of these requirements presently.

The chronology in this case is of critical importance. It appears that in November 2007 platntiff instituted an action against the defendant, which action plaintiff is characterised as involving a multi-milfion rand damages claim. On 19 November 2007 defendant delivered an entry of appearance to defend. On 16 January 2008, defendant delivered a Rule 35(14) notice requesting that plaintiff make available for inspection any written agreement in respect of the joint venture project referred to in paragraph 5 of its Particulars of Claim by plaintiff. On 18 January 2008 plaintiff delivered a notice of bar to defendant's Cape Town service address. On 21 January 2008 defendant delivered a Rule 30 notice calling upon plaintiff to comply with Rule 18(6) in that it had failed in its Particulars of Claim to allege whether the agreement set out in paragraph 5 thereof was written or oral.

On 22 January 2008 plaintiff served a Rule 35(14) notice on defendant calling for certain documentation for "purposes of possible replication to defendant's plea". On 23 January 2008 defendant filed a Rule 30(A) notice calling upon plaintiff to comply with Rule 18(16) in respect of the agreement relied upon as the Particulars of Claim. On 4 February 2008 it appears that the notice of bar came to the defendant's attention for the first time.

On 6 February 2008 defendant filed a Rule 30 notice alleging that the delivery of a notice of bar was an irregular step in that plaintiff had failed to comply with defendant's notice in terms of Rule 35(14) of the 15th of January 2008. On 5 February 2008   defendant's   attorney   wrote   to   plaintiff's   attorney requesting that they uplift the notice of bar and if agreement existed in respect of the joint venture that they furnish a response to that effect. On 8 February 2008 plaintiff delivered an application for default judgment to be heard on 18 February 2008. On 13 February 2008 defendant delivered the present application for removal of the bar. On 13 February, being the same date, defendant's attorney wrote to plaintiff's attorney proposing that should the plaintiff consent to the relief sought by the defendant as I have outlined it, no cost would be sought against the plaintiff.

The matter, having been postponed, a further supplementary affidavit was filed, this time by Mr Haw who described himself as the director of the defendant, such affidavit being deposed to on 9 July 2008. Attached to this affidavit was a copy of defendant's plea in response to plaintiff's Particulars of Claim.

With this chronology, I turn to an evaluation of the two requirements, which need to be established for a successful application of this kind.

"On the afternoon of 4 February 2008 I opened amongst the defendant's attorneys incoming mail for that day an envelope addressed to the defendant's attorneys by the office of Mr H W Hurter, the Sheriff for the District of the Cape, the defendant's attorneys Cape Town service address in this matter. Contained in the envelope were the following documents.

When I approached Mr Hurter to request that he act as my Cape Town service address I did so because he being an officer of the Court of many years standing was accustomed to dealing with court process and documents. I also have a personal and business reiationship with him, having represented him on a number of occasions in legal matters. The arrangement, which was agreed (and implemented) was that in the case of shortage notices (such as formal court notices, notices of contention and further the like) these would be transmitted to my offices by the Sheriff's office by way of fax. This has been successfully implemented since the inception of the arrangement between myself and Mr Hurter, the notable (and regrettable) exceptions being those relating to the plaintiff's notice of bar and notice in terms of Rule 35{14). In the case of longer documents (such as applications etc) the arrangement was that my office would be telephoned and arrangements would be made for the collection of the article. I have discussed the current allegation with both Mr Hurter and Mrs Theresa Withers, to whom the plaintiff incorrectly referred to as Willois. Pn this regard I refer to the affidavit by Mr Hurter."

"The   defendant's   legal   representative   has experienced some difficulty with the question of plea arising more particularly from the allegations contained at paragraph 5 thereof."

He then continues;

"The plaintiff however in his particulars failed to state, as it was obliged to have done in terms of the provisions of Rule 18(6) whether the contract (for within the context of the plaintiff's Particulars of Claim that is what the joint venture project is) was "written or oral and when, where and by whom it was concluded".

"With the plaintiff's statement now before the above Honourable Court that the very thing upon which the plaintiff relies for its relief it seeks in its claim against the defendant is not based upon agreement between the parties, the defendant is even more at a loss to know how it is to plead to the plaintiff's claim.

To the extent that the defendant is able to guess at the true nature of the plaintiff's alleged claims, defendant denies a joint venture project alleged by the plaintiff, the duty of care alleged pursuant thereto, indeed any contractual privity between plaintiff and defendant of the nature alleged by the plaintiff in its Particulars of Claim.

Such contractual bonds as may attach to the parties for the purpose of the subject matter alleged by plaintiff exist between the individual parties and Hatcheries. The defendant strongly suspects that the reason the plaintiff has formulated its claim with itself as plaintiff is to avoid the exclusion of liability by the defendant Hatcheries as set out in the

Agreement of Lease between defendant and Hatcheries, a copy of which is annexed and from which it is evident, the term is Hatcheries and not as the plaintiff has suggested."

"The need for the supplementary affidavit has arisen from the view that defendant is in the position to sufficiently plead to the plaintiff's Particulars of Claim in the light of the averments made in the plain tiffs answering affidavit."

It is significant that the plea, attached to this affidavit, to a very large extent, contains a series of denials; a denial that there is a contract between the parties, a denial that the law of delect is applicable to such a case.

In my view the defendant has met the requirements as set out in Rule 27(1) of the Act. Accordingly the notice of bar of 18 January 2008 is set aside. The plaintiff is given leave to file its plea. The costs of this application will stand over for determination at the trial.