South Africa: The Right Procedural Response To A Notice Of Bar

There have been conflicting judgments in regard to whether a notice of intention to except in terms of Rule 23(1) of the High Court Rules is an appropriate response to a notice of bar. In March 2012, in the case of McNally NO and Others v Codron and Others, the Western Cape High Court held that a party is precluded from delivering a notice of intention to except on the basis that the pleading is vague and embarrassing upon receipt of a notice of bar.

In Felix and Another v Nortier NO and Others, the Eastern Cape High Court held that the filing of a notice of intention to except is permissible in response to a notice of bar.

In Landmark Mthatha (Pty) Ltd v King Sabata Dalinyebo Municipality and Others: In re: Africa Earthworks (Pty) Ltd v Landmark Mthatha (Pty) Ltd and Others, the Court in the Eastern Cape followed the approach adopted in the Felix case.

In the recent case of Barnes and Another v Kushite Investment Holdings (Pty) Ltd, the plaintiffs instituted action against the defendants on 6 May 2019. On 20 May 2019, five of the six defendants delivered a notice of intention to defend. On 24 June 2019, the defendants delivered a notice of intention to except in terms of Rule 23(1). In response to this notice in terms of Rule 23(1), the plaintiffs delivered a notice of intention to amend. They, however, failed to deliver the amended pages timeously.

The defendants then required the plaintiffs to “re-deliver” their notice of intention to amend. The plaintiffs agreed and delivered such notice of intention to amend on 2 October 2019. Only then did the plaintiffs deliver their amended pages. In response to the plaintiffs' amended pages, on 2 December 2019, the defendants delivered a further notice of intention to except in terms of Rule 23(1) On 14 February 2020. The plaintiffs then delivered a notice of bar.

In response, the defendants “re-delivered” the December 2019 notice of intention to except. For convenience, we refer to this as the “February notice of intention to except”. On 25 March 2020, the plaintiffs delivered an application for default judgment and on 26 March 2020, the defendants delivered an exception.

The application for default judgment was enrolled for hearing on 17 June 2020 but was then postponed so that the defendants could have an application to set aside the plaintiffs' application for default judgment dated 25 March 2020, first decided.

The plaintiffs contended that the February notice of intention to except delivered by the defendants did not constitute a valid response to the notice of bar and they were accordingly entitled to apply for default judgment. The defendants contended that the February notice of intention to except constituted a valid response to the notice of bar and precluded the plaintiffs from proceeding with an application for default judgment.

The Gauteng Division of the High Court held that the weight of authority is to the effect that a notice of intention to except in terms of Rule 23(1), constituted a pleading for the purposes of Rule 26 or at least “the next procedural step in the proceedings” and therefore constituted a valid response to a notice of bar. In arriving at this conclusion, the court quoted, with approval, the Eastern Cape High Court's judgment in Steve's Wrought Iron Works and Others v Nelson Mandela Metro. A similar approach was also adopted by the Pretoria High Court in the case of Tuffsan Investments 1088 (Pty) Ltd v Sethole and Another. In this case, the court held that the defendants were entitled to serve the notice of intention to except within the period set out in the notice of bar.

The Free State High Court, in the case of Kramer Weihmann and Joubert Inc v South African Commercial Catering and Allied Workers' Union, held that a party faced with a notice of bar may file any relevant pleading in response to the notice of bar. The court held that the filing of Rule 23(1) notice of intention to except within the time period stipulated in the notice of bar constituted a relevant pleading.

In Tracey Hill N.O. and Another v Mark Brown, the Western Cape High Court handed down a judgment which followed the approach adopted in the McNally case and held that if a defendant is to avoid being barred pursuant to a notice of bar, the defendant must file a pleading, that is, a plea or an exception. The Western Cape High Court held in addition that a Rule 23(1) notice of intention to except does not constitute a proper response to a notice of bar.

In the Tracey Hill case, the Western Cape High Court made no reference to the judgments in Landmark Mthatha; Steve's Wrought Iron Works; Tuffsan Investments  or Kramer Weihmann, all of which had ruled that a Rule 23(1) notice of intention to except constituted a valid response to a notice of bar. The Western Cape High Court accordingly did not appear to have reference to the judgments which were highly critical in the McNally case.

The Pretoria High Court, in the Barnes case, considered itself bound by the judgment in Tuffsan Investments. Accordingly, In this case, the court concluded that a notice of intention to except in terms of Rule 23(1) constituted a pleading or at least, the next procedural step in the proceedings and it is therefore a valid response to a notice of bar.

Therefore, the court held that the defendant's February notice of intention to except constituted a valid response to the plaintiffs' notice of bar and therefore, the plaintiffs were not entitled to apply for default judgment. The Pretoria High Court therefore declared the application for default judgment to be an irregular step and set it aside. The plaintiffs were ordered to pay the costs of the irregular step application.

In our view, the approach adopted by the Pretoria High Court in the Barnes case is to be commended. Although a defendant should be cautioned against adopting a leisurely approach if it intends to contend that the particulars of the claim are vague and embarrassing, if the approach adopted by the court in the Barnes case is not followed by our courts, defendants may be prejudiced in having to plead to vague and embarrassing allegations.

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