In the complex world of litigation, even a minor misstep can jeopardise a case. Understanding and strategically leveraging court rules is not just prudent for corporate clients, it is essential. Rule 19 of the Uniform Rules of the High Court ("the Rules") outlines the timeframes for defendants to deliver their notice of intention to defend in action proceedings commenced by summons. Typically, defendants have 10 court days under Rule 19(1). However, Rule 19(2) extends this to 20 court days for certain defendants, including government ministers, provincial premiers, and the State. Under section 24(a) of the Superior Courts Act 10 of 2013 ("the Act"), those defendants are afforded one month to deliver their notice of intention to defend.
Service of the notice of intention to defend may be effected by way of email under Rule 4A(1)(c), where the plaintiff has provided an email address, in terms of Rule 17(3). As noted in Van Loggerenberg' s commentary on the Rules, if an attorney's email address is not provided or is unavailable, the only other address permitted by the subrule for receiving of notices by and service of documents is the attorney's physical address, which has to be within 25 kilometres of the registrar's office. Alternatively, the attorney must appoint a correspondent attorney at the Court's seat to receive documents.
Under Rule 19(5), a notice of intention to defend may be delivered out of time if it is before default judgment has been granted. If a plaintiff has applied for default judgment but it has not been granted yet when the notice of intention to defend is delivered, then the plaintiff shall be entitled to the wasted costs of the application for default judgment.
The issue surrounding the late delivery of a notice of intention to defend, especially when default judgment has been applied for, was the main subject in the 2023 decision in Khumalo v Road Accident Fund. The Johannesburg High Court highlighted a pertinent issue facing the courts – a party who fails to deliver a notice of intention to defend timeously and largely ignores any ongoing court proceedings "normally rocks up when the litigation party is almost at its tail end, and this is during the default judgment application phase." Kgomongwe AJ highlights, however, that the "court-sanctioned pre-trial procedures are vital to ensure fairness and justice even to the most indifferent of parties." Whilst the procedures are undoubtedly vital to ensure fairness and justice, the risk of an abuse of said procedures remains a critical issue to guard against.
In Standard Credit Corporation Ltd v Bester, the court held that an abuse of process occurs when a court process "is used by a litigant for a purpose for which it was not designed or intended, to the prejudice or potential prejudice to the other party to the proceedings".
Case Law
In the 2024 decision of Nathram v Road Accident Fund, the Pretoria High Court considered whether to set aside a notice of intention to defend filed out of time by the Road Accident Fund. Summons was issued on 17 September 2020, with the deadline to deliver a notice of intention to defend falling on 9 October 2020. This deadline was missed, and on the eve of the date for the hearing of Nathram's default judgment application, the Road Accident Fund delivered a notice of intention to defend. Davis J explains that Rule 19(5) envisages that prejudice occasioned by the late delivery of a notice of intention to defend can be rectified through a costs order. However, Davis J highlighted the disadvantage to a plaintiff who sues for damages as it delays the determination of the compensation due to the plaintiff. This is exacerbated by already heavily congested court rolls, especially in Gauteng. Davis J ultimately held that the belated delivery of the notice of intention to defend, nearly four years after the deadline, amounted to an abuse of process and was set aside.
As recently as November 2024, in the matter of Mattheus v Road Accident Fund, the Pretoria High Court once again faced the issue of a notice of intention to defend being delivered the day before a default judgment application was to be heard. In this matter, the summons was served on 17 April 2023, and the notice of intention to defend was electronically served on 2 July 2024, some 14 months out of time. Apart from the delay in delivering the notice of intention to defend, it was argued that it was not delivered per the Rules. The plaintiff had applied for the setting aside of the notice of intention to defend under Rule 30, arguing that the late filing of the notice of intention to defend, without an explanation for the lateness or an application for condonation, amounted to an abuse of process. The application included the filing of affidavits and heads of argument by both parties. The Court held that, despite the defendant's contention to the contrary, Rule 19(3)(c) was not complied with, as the plaintiff had not provided written consent that subsequent documents and notices may be exchanged via email. This, in turn, resulted in the defendant not having complied with Rule 19(5). Kruger AJ went further, holding that the defendant failed to comply with the Rules and used the Rules for "ulterior motives" and "as an abuse of the process". The notice of intention to defend was therefore set aside.
Concluding Remarks
As aptly observed by Kruger AJ in Mattheus, "there are various remedies available for all litigants in terms of the Rules of Court, which have been established to provide certainty, reliability, fairness and guidance to litigants in the process of litigation." Rule 19 is essential in ensuring fairness and justice in the court process. However, the courts will not ignore non-compliance with the Rules when the Rules are utilised in a manner that amounts to an abuse of process.
Defendants in civil matters who wish to defend a claim against them must ensure that their notice of intention to defend is delivered within the period prescribed under Rule 19(1), alternatively Rule 19(2) and section 24(a) of the Act, to prevent potential challenges further along in the litigation process. Further, should the prescribed periods for delivery of a notice of intention to defend expire, and the defendant later seeks to deliver a notice of intention to defend, Rule 19(5) makes provision for costs to be awarded against the defendant to the plaintiff, where default judgment has been applied for, but not yet granted.
Service of the notice of intention to defend must be effected at the address as provided for in the summons served upon them. Rule 4A(1)(c) permits the service of documents and notices via email where the other party has provided an email address. However, where an email address is not provided, service is to be effected at the physical address provided for in the summons. Defendants are reminded that under Rule 19(3)(c), absent the written consent of the plaintiff to the exchange or service by both parties of subsequent documents and notices via email, service in terms of Rule 4A(1)(c) is not permitted where an email address is not provided by the other party. As outlined in Mattheus above, doing so may lead to the court deeming that a notice of intention to defend has not been delivered, and a defendant then faces the risk of a default judgment being granted against them.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
