Rule 22 and Piecemeal Pleadings

Absa Bank. Photo Credit Reuters 2021
Eloise Cilliers Barnard Inc

ELOISE CILLIERS

Associate

Absa Bank Limited instituted action against Marcel Christoffel Meiring for payment in the amount of R1,1 million – an amount that was still outstanding in terms of a sale agreement of Arista CC which had been recently wound up. The amount was sought from Meiring based on the unlimited deed of surety he had executed in favor of Absa Bank Limited in respect of any indebtedness to the bank by the Close Corporation.

The defendant, Meiring, delivered a Notice of Intention to Defend but failed to deliver his plea within the time prescribed by the Uniform Rules of Court. Absa Bank then served the Defendant with a Notice of Bar, and in response the Defendant served a special plea of extinctive prescription but did not plea to the merits of the matter.

The Plaintiff subsequently applied for Summary Judgment in terms of the amended procedure under Rule 32 for Summary Judgment. The Defendant responded with an opposing affidavit in which he raised his defense based on the merits of the matter and the parties then agreed that the matter should be postponed in order for the defendant to deliver his plea on the merits of the matter.

When the matter resumed again, the Court was asked to make an order by agreement to refuse summary judgment and directing that the matter proceed to trial with the cost of summary judgment.

In its judgment, the court noted that Rule 22 of the Uniform Rules of Court in its current form does not make provision for piecemeal pleadings.  It also referred to Rule 32 as recently amended, which deals with Summary Judgment applications. In so doing, it emphasized the current wording of Rule 32(2)(b), which states that a Plaintiff should in its affidavit in support of application for Summary Judgment, “explain briefly why the defense as pleaded does not raise any issue for trial”.

The Court then considered the practice in the Western Cape division off the High Court, where piecemeal pleadings were readily allowed since the time before the Uniform Rules of court were instituted for the first time (“the Cape Practice”).  It noted that “the purpose of procedural rules of court has always been, and remains, the efficient administration of justice, and any construction of them that would conduce to a hampering effect would be dubious”

The Court stated that, in the current matter, it was clear that the plaintiff would probably not have applied for summary judgment had the defendant pleaded on the merits of the particular case as well, as it did in its opposing affidavit in the summary judgment application. The court stated that this conduct of the defendant clearly delayed the matter and lead to increased legal costs for both parties, something that “was plainly at odds with what presumably remains the object of the summary judgment procedure: the time and cost-effective disposal of litigation in matters that are amenable to the process and in which a defendant is not able to show that it has a bona fide defence”.

The Court then made the following observation: “The delay, unnecessarily increased costs and inconvenience occasioned in the current matter by the defendant’s failure to plead over serve to demonstrate that the administration of justice would be better served by interpreting rule 22 to require a defendant to plead over, and by recognising that it does not leave scope for the continuation of ‘the Cape Practice”.

The Court continued to state that “a defendant in a summary judgment application which has failed to plead all its defenses will be required to apply to amend its plea if it seeks to add any for purposes of its opposition to Summary Judgment. A defendant’s failure to have pleaded all defenses initially will be material and in addition to all the usual requirements to obtain indulgence of being granted leave to amend, will require convincing explanation if it is to exclude the possibility that a court might infer delaying tactics and a lack of bona fides”.

The Court concluded that, even though because of the uncertainty the Cape Practice brought, it was content to grant the orders requested by the parties in this matter, it warned that this will not be the case again in future matters.  It follows that defendants would seemingly in future be required to plea on the merits of the case as well, even in instances where they have raised a special plea. This will then put an end to the Cape Practice and piecemeal pleadings will not be readily tolerated any longer.

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