Court name
High Court
Case number
2606 of 2009
Title

Phincon Enterprises (Pty) Ltd v Dos Santos (2606 of 2009) [2012] NAHC 38 (07 February 2012);

Media neutral citation
[2012] NAHC 38
Coram
Miller AJ













CASE NO.: I 2606/2009



REPORTABLE








IN THE HIGH COURT OF
NAMIBIA



In the matter between:








PHINCON ENTERPRISES
(PTY) LTD
…..................................................
PLAINTIFF








and








LUIS ARSENIO
SALVATERRA DOS SANTOS
…................................
DEFENDANT








CORAM: MILLER, AJ



Heard on: 06 February
2012



Delivered on: 07 February
2012








RULING
(Ex-Tempore):



MILLER, AJ:
[1] In this matter there is an application by the Defendant brought
in terms of Rule 30 of the Rules of this court, to set aside the
filing of the Plaintiff’s Amended Particulars of Claim as an
irregular step.








[2] The matter arises in
the following way. The matter became partly heard during the latter
part of last year and was then postponed until yesterday, 6th
February in order for the trial to continue.








[3] In the interim and on
the 16th December 2011, the Plaintiff prepared a notice of
its intention to amend its particulars of claim. That notice was
filed with the Registrar and it is common cause that it was on that
date transmitted by email to the legal representatives of the
Defendant.








[4] There was apparently
an agreement between the legal representatives of the Plaintiff and
those of the Defendant that the notice, which had been emailed will
be delivered to the Defendant’s legal representatives once
their offices opened early in January 2012.








[5] That however never
transpired and thereupon the Plaintiff filed its Amended Particulars
of Claim. That in turn, as I have indicated, prompted an application
on behalf of the Defendant to set aside the filing of the Amended
Particulars of Claim as an irregular step.








[6] Mr Phatela, who
represents the Plaintiff in this matter, contends that the
transmission of the Notice of the Plaintiff’s intention to
amend constitutes compliance with the provisions of Rule 28 of the
Rules.








[7] He contends that Rule
28(1) requires merely that a party desiring to amend its pleadings
shall notify all other parties of its intention to do and shall
furnish particulars of the amendment. He contends in argument that
transmitting the notice via email constitutes a notification to the
other party of his intention to amend.








[8] To my mind the answer
is not to be found simply in Rule 28(1). Rule 28(1) should be read
together with Rule 28(2).








Rule 28(2) reads as
follows:



The
notice referred to in sub-rule (1) shall state that unless written
objection to the proposed amendment is delivered within 10 days of
delivery of the notice, the amendment will be effected.”








[9] Erasmus, in his works
Superior Court Practice at B1 to B1-77 states the following:



Sub-rule
2 refers to delivery of the notice, i.e. in terms of Rule 1, copies
of the notice must be served on all parties and the original filed
with the Registrar.”








[10] Rule 1 which relates
to service contains no provision for delivery by way of electronic
mail.








[11] In my view the
Learned Author correctly sets out the position. I am fortified in my
conclusion albeit it in an indirect way, by a passage
appearing in the work by Cillers, Loots and Nel, The Civil
Practice of the High Courts of South Africa,
1st
Edition at page 383 where the Learned Authors deal with
the transmission of process in the ordinary course by way of
electronic means, and I quote from the following passage:








More
recently the court has ordered service by facsimile transmission to
be followed up dispatch of the documents by registered mail.
Presumably the court will in appropriate circumstances and provided
safeguards as to authenticity are present, also allow service by
email.”








[12] It would seem to me
that in the circumstances there has been non-compliance with the
provisions of Rule 28(1) and 28(2) and accordingly the filing of the
Amended particulars of Claim is an irregular step which ought to be
set aside.








[13] In the circumstances
the application brought in terms of Rule 30 succeeds with costs.


















_________



MILLER AJ






































ON BEHALF OF THE
PLAINTIFF: Mr. Phatela



Instructed by: Shikongo
Law Chambers













ON BEHALF OF DEFENDANTS:
Mr. Dicks



Instructed by: Krüger,
van Vuuren & Company