REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 20406/11

In the matter between:

(in their capacities as trustees of the Belulu Trust, 
Registration number IT4078/97)

(in their capacities as trustees for the time being
of the Shanklin Trust, Registration number IT1833/2007)
and

(in their capacities as the remaining trustees of the 
Belulu Trust, Registration number IT4078/97)

(in their capacities as trustees of the Party Trust, 
Registration number IT3574/2007)

Attorneys for Applicants:	Korbers Inc

Attorneys for Respondent:	Maurice Phillips Wisenberg

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

(in their capacities as trustees of the Belulu Trust, 
Registration number IT4078/97)

(in their capacities as trustees for the time being
of the Shanklin Trust, Registration number IT1833/2007)
and

(in their capacities as the remaining trustees of the 
Belulu Trust, Registration number IT4078/97)

(in their capacities as trustees of the Party Trust, 
Registration number IT3574/2007)

Summary:

act which advances the proceedings one stage nearer completion'.
- Notice of intention to except not a pleading to constitute a proper response to
delivery of notice of bar.
- The filing of a 'notice of intention to except to plaintiffs' particulars of claim is merely to make full use of the remedies which the Rules provide for an attack on a defective pleading - does not constitute the taking of a further step within the meaning of Rule 30(2).
- Proposition that an 'exception' is a pleading re-affirmed.

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

(in their capacities as trustees of the Belulu Trust, 
Registration number IT4078/97)

(in their capacities as trustees for the time being
of the Shanklin Trust, Registration number IT1833/2007)
and

(in their capacities as the remaining trustees of the 
Belulu Trust, Registration number IT4078/97)

(in their capacities as trustees of the Party Trust, 
Registration number IT3574/2007)

JUDGMENT DELIVERED ON 9 MARCH 2012

YEKISO, J

[2] The plaintiffs object to the service of the defendants' notice of intention to except during the bar period. The plaintiffs, whilst conceding that an exception may be delivered during the bar period, contend that the filing and service of a notice of intention to except during the bar period is an irregular step susceptible to be set aside as an irregular step in terms of rule 30 of the Uniform Rules. It is contended on behalf of plaintiffs that such a notice ought to have been filed and served within a period of twenty days required to file a plea (with or without a counterclaim), an exception or an application to strike out after the giving notice of an entry of appearance to defend.

[3] The chronology of service of subsequent processes after service of a combined summons on the defendants is as follows:

[3.1.] The plaintiffs summons and particulars of claim were served on the defendants on 2 October 2011. The defendants delivered their notice of intention to defend on 19 October 2011.
[3.2.] Service of the defendant's notice of intention to defend was followed by an application for summary judgment against first defendant only, which was served on 25 October 2011.

[3.3.] On 4 November 2011, and after service of an application for summary judgment, the defendants served a notice in terms of rules 35(12) and (14) requesting the production of certain documents. Plaintiffs responded to the notice so served on 7 November 2011.

[3.4.] On 9 November 2011 security was furnished for plaintiffs' claims in terms of rule 32(3)(a) of the Uniform Rules. On 10 November 2011 the application for summary judgment against the first defendant was withdrawn by agreement between the parties.

[3.5.] The 20 day period for the delivery of the defendants' plea expired on 8 December 2011. On 9 December 2011 plaintiffs served a notice of bar on the defendants in terms of rule 26 of the Uniform Rules.

plaintiffs' particulars of claim. In that notice the defendants advised of their notice of intention to file an exception to the plaintiffs' particulars of claim on the basis that the particulars failed to disclose a cause of action, alternatively, that the particulars were vague and embarrassing. The plaintiffs were called upon to remove the cause of complaint within a period of 15 days as contemplated in rule 23(1) of the Uniform Rules.

THE PLAINTIFFS' COMPLAINT
[6] As has already been pointed out, the plaintiffs' complaint is that the defendants' notice of intention to except was out of time in that the notice was delivered after expiry of a period of twenty days within which the defendants were required to file a plea (with or without a counterclaim), an exception or application to strike out as provided in rules 17(1) and 22(1) of the Uniform Rules. Over and above that, the plaintiffs complain that the defendants' complaints in the notice are not valid or proper subjects to be dealt with by way of an exception and that the defendants have adopted a wrong procedure by raising their complaints by way of an exception.

THE PARTIES' CONTENTION

PROCEDURE IN DELIVERY OF AN EXCEPTION
[11] In terms of rule 17(1) of the Uniform Rules, a combined summons must call upon the defendant to deliver a plea (with or without a counterclaim), an exception or an application to strike out within twenty (20) days after filing a notice of intention to defend. In terms of rule 19(1) the defendant, in every civil action, shall be allowed ten (10) days after service of summons on him or her within which to deliver a notice of intention to defend.

[12] On the other hand, rule 22(1) of the Uniform Rules requires a defendant to deliver a plea (with or without counterclaim), or an exception with or without an application to strike out, within twenty (20) days after delivery of a notice of intention to defend in respect of a combined summons.

[14] After giving notice of intention to defend, a subsequent pleading is a plea (with or without a counterclaim), an exception or an application to strike out.

OPTIONS OPEN TO THE DEFENDANT AFTER SERVICE OF SUMMONS
[15] As has already been pointed out, a combined summons must call upon a defendant to deliver a plea (with or without a counterclaim), an exception or an application to strike out within twenty (20) days after giving notice of intention to defend. The defendant is thus apprised of these options on service of summons. The defendant is apprised of these options before giving notice of intention to defend which he must deliver within ten (10) days of service of summons.

[16] Once the defendant has delivered its entry of appearance to defend, such a defendant will already be aware that it has a period of twenty (20) days within which to either deliver its plea (with or without a counterclaim), an exception or an application to strike out. If the defendant elects to except to the plaintiff's particulars of claim on the basis that the particulars are vague and embarrassing, it has a period of twenty (20) days within which to serve its notice of intention to except to plaintiffs' particulars. In that notice, the plaintiffs have to be afforded a period of fifteen (15) days within which to remove the cause of complaint.

RULE 26: NOTICE OF BAR
[17] Because of the discussion which follows, it is necessary to cite in full the provisions of rule 26. Rule 26 of the Uniform Rules provides:

NOTICE OF INTENTION TO EXCEPT

[25] As has already been pointed out, the defendants' notice of intention to except, on the basis of the authorities referred to in paragraph [21] to [22] of this judgment cannot be said to advance these proceedings a stage nearer completion. What the defendants, in effect, want to do is to utilise one of those remedies in the rules that provide an attack on a defective pleading. The notice of intention to except is intended to achieve that objective. It is not an objective that can be achieved by way of a response to a notice of bar. It is a remedy that would have had to be utilised and resorted to within a period of twenty (20) days as provided in rules 17(1) and 22(1) of the Uniform Rules. The notice of intention to except, as taken in the instance of these proceedings, is an irregular step that falls to be set aside.

[28] In the light of the conclusion I arrived at as regards the defendants' notice of intention to except, it is not necessary for me to deal with those grounds of objection relating to the defendants' proposed complaints not being proper subjects of exception proceedings.

[29]     In the result I make the following order:

[29.1.] The first, second, third and the fifth defendants' notice of intention to except to the plaintiffs' particulars of claim, served on the plaintiffs' attorneys of record on 13 December 2011, is set aside as an irregular step as contemplated in rule 30(3) of the Uniform Rules of Court.
[29.2.] The first, second, third and the fifth defendants are ordered to pay plaintiffs' costs, duly taxed or as agreed, jointly and severally, the one paying the other to be absolved.

N.J YEKISO, J