Manyasha v Minister of Law and Order (113/1997) [1998] ZASCA 112 (27 November 1998)

2 SMALBERGER JA:

This appeal concerns the proper interpretation of

Rules 10 and 60(5) of the Magistrates' Court Rules. The issues are

whether Rule 10 applies to both defended and undefended actions, or

only the latter; and whether Rule 60(5) can be invoked to revive a

summons that has lapsed.

The background facts are these. On 8 November 1993 the

appellant (as plaintiff) in his capacity as father and natural guardian of

his minor son, Sonwabo, issued a summons against the respondent (as

defendant) in the Magistrate's Court, Grahamstown, for damages arising

out of an alleged assault. The summons was served on the respondent

on 11 November 1993. Appearance to defend was entered on 2

December 1993 and a request for further particulars was filed on 8

3 December 1993. Despite repeated requests by the respondent and threats

to bring an application to compel their delivery (which never eventuated)

the particulars were only furnished on 13 February 1995. It is not

necessary to deal with the reasons for the delay.

On 6 April 1995 the respondent filed a special plea that the

summons had lapsed in terms of Rule 10. On 6 November 1995 the

appellant sought to invoke the provisions of Rule 60(5) in an application

to extend the period provided in Rule 10 within which, after service of

the summons, further steps in the prosecution of the action had to be

taken. In due course the matters were heard. The appellant's application

was dismissed and the special plea upheld with costs. The appellant

unsuccessfully appealed to the Eastern Cape Division of the High Court,

but was granted leave to appeal to this Court. The judgment of the Court

4 a quo is reported - see Manyasha v Minister of Law and Order [1997]

1 ALL SA 729 (E).

Rule 10 provides:

"10. If summons in an action be not served within 12 months of the date of its issue or, having been served, the plaintiff has not within that time after service taken further steps in the prosecution of the action, the summons shall lapse. Provided that where the plaintiff or his attorney files an affidavit with the clerk of the court before the expiration of such period setting out-

1. that at the request of the defendant an extension of time in which to pay the debt claimed or any portion thereof has been granted to him;

2. that in terms of the agreement judgment cannot, save in case of default, be sought within a period of 12 months from the issue of the summons; and

3. the period of the said extension,

the summons shall not lapse until 12 months after the expiration of the period of extension."

At the hearing of the matter in the Magistrate's Court it was

5 common cause that the appellant had not, after the service of summons,

"taken further steps in the prosecution of the action" until the further

particulars were delivered more than 12 months later. As a result, if the

Rule is applicable to defended actions the appellant's summons will

have lapsed.

The issue whether Rule 10 applies to defended as well as

undefended actions appears to have first arisen for decision in Sibiya v

Minister of Police 1979(1) SA 333 (T). It was there held that the Rule

applied to both. Since then there have been conflicting judgments in the

Transvaal Provincial and Eastern Cape Divisions. The most recent

decision on the point is that of the Full Court of the Transvaal Provincial

Division in the case of Langenhoven v Comyn t/a Rags to Riches

1998(1) SA 710 (T), where the Court subscribed to the view expressed

6 in Sibiya's case. The judgments in which different views were

expressed are referred to in the Langenhoven judgment at 713 D - J.

They have both been reported - see Kinsman v Two Core Walling and

Driveways 1994(2) PHF 40; Die Trustees Indertyd van M & L Trust v

Jason Lucas h/a Lucas Quality Thatchers [1996] 4 ALL SA 237 (E).

The Langenhoven judgment also sets out (at 711 H) the Rule in its

original form, and traces, albeit not entirely accurately, its historical

evolution until 1968 when the present set of Rules was introduced (at

711 G to 712 D). It is unnecessary to repeat that history save to point

out that Order XXXIV (10) was first introduced by Government Notice

2323 of 22 December 1920 published inter alia in Government Gazette

1111 of 24 December 1920. It read at the time:

"Where no steps have been taken by the plaintiff to proceed with the action within six months after the issue of

7 summons, the summons shall automatically lapse."

This Rule was amended (with effect from 1 November 1923) by

Government Notice 1442 of 25 August 1923, published inter alia in

Government Gazette 1340 of 31 August 1923.

The parties are ad idem that the Magistrates' Court Rules have

statutory authority and should be construed in the same way as any other

legislative enactment (Chasfre Investments (Pty) Ltd v Majavie and

Others 1971(l)SA 219(C)at223 G-H). It is trite that the primary rule

in the construction of statutory provisions is to ascertain the intention of

the Legislature; in the present matter it is, more pertinently, the intention

of the rule-maker that needs to be determined. One seeks to achieve this,

in the first instance, by giving the words of the provision under

consideration the ordinary grammatical meaning which their context

8 dictates, unless to do so would lead to an absurdity so glaring that the

rule-maker could not have contemplated it (Public Carriers Association

and Others v Toll Road Concessionaries (Pty) Ltd and Others 1990(1)

SA 925 (A) at 942 I - J).

As a starting point in interpreting Rule 10 one should have regard to the words "summons in an action". Without qualification they are wide enough, on a literal interpretation, to encompass all actions, undefended or defended. Prima facie the Rules must be taken to apply to all actions unless there is an express provision or a clear implication to the contrary. Neither indication is present in the Rule, as will appear more fully below.

The contextual setting of Rule 10 - its arrangement within the overall scheme of the Rules - lends support to an argument that it was

9 intended to apply to undefended actions only. This is because it is

positioned after the Rules relating to matters such as summons

commencing action and service of process but before those dealing with

judgment by consent, judgment by default and appearance to defend.

The sequence of the Rules would therefore tend to suggest that Rule 10

should be confined to undefended actions. This argument is negated,

however, if one has regard to the origin of the Rule in its present form.

It was introduced with practically identical wording to its present form

in 1936 as Order XXXIV (10). (Such differences in wording as exist are

minor, purely grammatical, do not affect the meaning of the Rule and

can be disregarded; for practical purposes the original and present form

are identical and I shall regard them as such.) The Rule occupied the

same position as its predecessor - towards the end of the Rules and after

10 those relating to appearance to defend and other matters particularly

pertinent to defended actions. Its positioning at the time would not have

justified an inference that it was intended to apply to undefended actions

only. Its subsequent rearrangement in 1968 to occupy a more logical

position in the scheme of things is not of itself a strong enough

indication of an altered intention.

This conclusion is fortified when regard is had to the historical

evolution of the Rule and, in particular, what must be regarded as a

significant change in its wording. The Rule after its amendment in 1923

read:

"In all undefended cases where no steps have been taken by the plaintiff to proceed with the action within twelve months after the issue of the summons, the summons shall automatically lapse." (My emphasis)

Not only was the operation of the Rule specifically limited to

11

"undefended cases", but the fact that reference was only made to "issue of the summons", and not service as well, showed clearly that the Rule was never intended to apply to a matter that had proceeded beyond the issue of summons, in other words, an undefended matter.

When the wording of the Rule was altered to its present form the word "undefended" was omitted and a reference to the service of summons was incorporated. A change of wording in a statutory provision prima facie, although not inevitably, signifies a change of intention (Port Elizabeth Municipal Council v Port Elizabeth Electric Tramway Co Ltd 1947(2) SA 1269 (A) at 1279; R v Shole 1960(4) SA 781 (A) at 787 B). Much will depend upon the nature, extent and significance of the change. The change in 1936 was a radical one from the specific ("undefended cases") to the non-specific ("summons in an

12 action"), and in my view provides a strong indication that the rule-maker

no longer intended the application of the Rule to be limited to

undefended actions. Had it intended the limitation still to apply the

obvious course would have been to retain the word "undefended". Its

omission was clearly calculated, not inadvertent. Furthermore, the

incorporation of a reference to the service of a summons must be seen

as moving the operation of the Rule from a situation which could pertain

only to an undefended action closer to a defended one. In this regard

one must accept that there was continuity of intention on the part of the

rule-maker when the Rule, as introduced in 1936, was incorporated in

(virtually) unaltered form in the new set of Rules in 1968, in other

words, the change of intention manifest in 1936 must be taken to have

still held sway in 1968.

13 It was argued that when the Rule in its current form was

introduced in 1936 the word "undefended" was rendered redundant or

superfluous by the introduction of the proviso which indicates that the

Rule is only applicable to undefended actions. I do not agree. I see no

reason why, sensibly interpreted, the proviso cannot also apply to actions

where there has been an appearance to defend followed by an

arrangement or settlement, whether overall, partial or conditional. But

even if the operation of the proviso was confined to undefended actions,

it would not necessarily follow that the rest of the Rule should also be

so confined.

I agree with the view expressed in Sibiya's case (supra at 336 C -

D) that the primary purpose of the Rule is to penalise a supine plaintiff.

(A subsidiary or complementary purpose may be to bring about finality,

14

both administratively and otherwise, to matters where actions have been

instituted but nothing done to actively pursue them.) This purpose would apply to both undefended and defended cases. There is no difference in principle between a plaintiff who issues a summons and then sits back and does nothing and one who after service of summons and entry of appearance to defend (or, as in the present instance, after receipt of a request for particulars) acts likewise. In either instance he is being supine, and in both instances his inactivity is worthy of censure. The purpose of the Rule is best served if it applies to both situations. It is true that where there has been an appearance to defend followed by a request for further particulars and nothing further, the actual period of inactivity before the twelve month period from the date of service expires is correspondingly shortened. But the vigilant plaintiff can

15 guard against, and avoid, any pitfalls created by the Rule. The fact that

a defendant who has entered an appearance to defend and requested

further particulars, or filed a plea, can utilise the Rules to compel a

plaintiff to respond and take further steps in the prosecution of the action

does not alter the plaintiff's position. It may suit a defendant, for tactical

or other reasons, simply to sit back and do nothing. But the Rule is not

designed to penalise a defendant for inaction or a failure to take steps to

bring a matter to finality. The most that can be said is that the Rule

probably has greater application in undefended matters than in defended

matters. It does not follow that it should not apply to both. And it is a

far cry from concluding that it can only apply to undefended actions.

It was also argued that if the Rule were to be interpreted to apply

to defended actions it would give rise to a number of anomalies. Some

16 of these so-called anomalies are alluded to in the judgments referred to

in the Langenhoven case. Others were raised in argument. Anomalies

have their place in the process of interpretation (Manjra v Desai and

Another 1968(2) SA 249 (N) at 254 B;). Anomalies one way or another

are an inevitable consequence of most statutory provisions. The fertile

mind will always be quick to find them. In dealing with anomalies one

must draw a distinction between far-fetched anomalies and those that are

ordinary and predictable (Aetna Insurance Co v Minister of Justice

1960(3) SA 273 (A) at 278 B - D). I do not propose to deal with the

various anomalies that have been suggested. Suffice it to say that they

strike me as being more apparent than real, do not lead to an absurdity

(it not having been suggested that they did) and, more importantly, arise

from situations which can be guarded against, forestalled or avoided by

17 a vigilant plaintiff who, after all, is in a position largely to control the

litigation process and determine his own destiny.

In the result there is no reason, or no sufficient reason, to depart from the literal interpretation of Rule 10. I am accordingly of the view that it applies to both defended and undefended actions as found by the Court a quo as well as the courts in the Sibiya and Langenhoven cases.

As it was common cause that the appellant had taken no further steps in the prosecution of the action after service of summons it is not necessary to consider the meaning of that phrase in Rule 10. What it clearly does not require of a plaintiff is that he should bring his action to finality within twelve months of the service of summons. It would seem that all that is required of a plaintiff is that he should within that period advance the proceedings one stage nearer completion, thereby

18

evincing his intention of pursuing the matter further. In view of the

consequences that flow from non-compliance with Rule 10 it may

require a restrictive interpretation in this respect. A step, rather than

steps, in advancing the proceedings is probably all that is required to

preclude the potentially harmful operation of Rule 10 (cf Kagan and Co

v Gunter's Store 1955(2) SA 618 (O) at 621 C - D). I express no firm

view on the matter.

This brings me to the next issue which is whether the provisions

of Rule 60(5) can be invoked in order to revive the appellant's lapsed

summons. This also involves a determination of the rule-maker's intent.

Rule 60(5) provides:

"(5) Subject to the provisions of rule 17(l)(b), any time limit prescribed by these rules, except the period prescribed in rule 51(3) and (6), may at any time, whether before or after the expiry of the period limited, be extended-

19

4. by the written consent of the opposite party; and

5. if such consent is refused, then by the court on application and on such terms as to costs and otherwise as may be just."

Rule 17(l)(b) prohibits a defendant from raising an exception without

leave of the Court consequent upon a failure to deliver particulars of any

exception to a summons; Rule 51(3) and (6) relate to an appeal and a

cross-appeal. They are not germane to the present enquiry.

The issue referred to resolves itself into a question of what the meaning is of the word "lapse" and whether the twelve month period referred to in Rule 10 is a "time limit prescribed by these rules" capable of extension.

The meaning of "lapse" within the context of Rule 10 was considered in Minister of Law and Order and Others v Zondi 1992(1) SA 468 (N). In delivering the judgment of the Court Thirion J (at 470

20 I) referred to the observations of Selke J in Dawood v Abdoola and

Another 1955(2) SA 365 (N) at 368 that the more usual meaning of the

verb "to lapse", in the parlance of the law, is "to fall or pass away

finally". He also referred (at 471 B) to Pietermaritzberg Corporation

v Union Government 1935 NPD 36 at 51 where Matthews AJP said:

"'Lapse' is a term which can only mean to come to an end altogether. The meaning given by Webster's Dictionary to 'lapse' when used in this sense is 'to become ineffectual or void'."

To these references may be added the Shorter Oxford English

Dictionary's definition of "lapse" in a legal sense (Vol I, 1176) viz "[t]he

termination of a right or privilege through neglect to exercise it within

the limited time . . .".

Thirion J went on to conclude (at 471 B- F):

"The meaning of an expression must depend to a large

21

extent on the context in which it is used, but on the view which I take of Rule 10, its effect is to render a summons void at the expiration of the period of 12 months unless a further step has been taken in the prosecution of the action within that period and provided that the proviso to the Rule does not find application.

It would seem to me that the object of Rule 10 is to penalise a plaintiff who has been unduly dilatory in taking a further step in the prosecution of his action after issue or service of the summons. This object is achieved by depriving the summons after the passage of the prescribed period of time of all legal efficacy."

I agree. This corresponds with the use of the word "verval" in the

Afrikaans text of Rule 10, a word which, if anything, is even clearer and

stronger in its meaning than "lapse". Die Verklarende Afrikaanse

Woordeboek (8^th Ed. p 1020) defines "verval" as, inter alia, "ongeldig

word". HAT p 1273) gives as one of its meanings "sy geldigheid of

waarde verloor".

22 The matter does not end there. Thirion J went on to add (at 471

F-G):

"The fact that a summons has lapsed in this sense would, not by itself, debar the Legislature from providing for its revival or for it to be reinvested with legal efficacy but, having regard to the important legal consequences which would flow from such revival and the prejudice which it might cause a defendant, it is hardly likely that the Legislature would have left the matter of its revival to be dealt with under a general provision such as Rule 60(5).."

In coming to this conclusion the learned judge appears to have

been influenced by three factors:

6. the fact that the rule-maker did not circumscribe in detail the requirements which had to be complied with for a revival of the lapsed summons to take place (at 471 G);

7. the fact that the proviso to the Rule "sets out the requirements which have to be complied with in order to

23

prevent a summons from lapsing", this being "an important

indication that the [rule-maker] contemplated that only in

the case provided for in the proviso, and in no other, can

there be an extension of the period of 12 months" (at 471

H -1); and

(c) the fact that in other Rules which provide for lapsing a

magistrate is not competent under Rule 60(5) to grant an

extension of time (at 471 J - 472 C).

Re (a): I do not find this a compelling consideration. There is no reason

why the requirements for revival need to be spelt out if the rule-maker

intended that the extension of the 12 month period by (a) written consent

of the opposite party, or (b) order of court could effectively revive or

reinstate the summons. Such intention would not be in conflict with the

24. purpose of Rule 10. The sanction for inaction remains. The plaintiff is

penalised for not taking further steps within the prescribed period - his

summons lapses. But the situation is not irretrievable. If written consent

to the extension of the period, or failing that, a court order, can be

obtained, there is no fundamental principle which precludes the revival

of a summons through extension of the period. In the former instance

there can be no prejudice to a defendant who has consented to an

extension of time; in the latter instance the question of possible

prejudice is a factor to be considered in the exercise of the magistrate's

discretion. Nor is there anything absurd or incongruous in such a

situation. Furthermore, there can be many reasons for a plaintiffs

inactivity after the service of summons, just as there can be many

reasons for a plaintiffs failure to comply with other time limits

25 prescribed in the Rules. In my view it would be perfectly

understandable if the rule-maker decided to give a magistrate, in the

absence of written consent, an extensive discretion to decide whether or

not extensions of time should be granted when time limits prescribed by

the Rules had been exceeded, without circumscribing the requirements

in detail.

Re (b): Reliance on this factor is in my view misplaced. What it

overlooks is that the proviso to Rule 10 caters for a special and fairly

exceptional case where an otherwise apparently inactive plaintiff is able

to obtain an extension as of right without the need for written consent

of the opposite party or having to satisfy a magistrate to exercise a

discretion in his favour. From this it does not necessarily follow that a

plaintiff is precluded, in different circumstances, from obtaining an

26

extension of time in terms of Rule 60(5) with such written consent or

leave of the court.

Re (c): The other cases provided for in the Rules where extensions could be granted otherwise than under Rule 60(5) do not, in my judgment, indicate that Rule 60(5) is not applicable in a case such as this. Where appeal or cross-appeals have lapsed there is a power, not in the magistrate, it is true, but in the High Court, as the court of appeal, to grant an extension. Where a warrant referred to in sec 65 F(l) or sec 65 G of the Magistrates' Courts Act 32 of 1944 has lapsed it may be extended under the proviso to Rule 45(4) by a period not exceeding 12 months: in other words the power to extend, in that case, unlike the general power under Rule 60(5), is limited in a particular way. In neither of the instances mentioned by Thirion J is there a "lapse" which

27 inevitably results in a permanent non-remittable termination of the right

to proceed.

Rule 60(5) provides for the extension of "any time limit prescribed by these rules". The word "any" is one of very wide import (Arprint Ltd v Gerber Goldschmidt Group South Africa (Pty) Ltd 1983(1) SA 254 (A) at 261 B - D). Rule 10 effectively imposes on a plaintiff, on threat of a sanction, a time restriction within which further steps (in the prosecution of an action) have to be taken after issue or service of summons. Although coupled with a sanction, the restriction none the less remains a time limit. As such it prima facie falls within the ambit of Rule 60(5). I can think of no compelling reason why the operation of the Rule should be precluded. It is axiomatic that the rule-maker could have put its intention beyond doubt, if it was so minded, by

28

expressly excluding Rule 10 from the operation of Rule 60(5). It chose

not to do so.

In interpreting Rule 60(5), and how it impacts on Rule 10, two further considerations are worthy of mention. The first is that in a matter pending in a High Court a plaintiff must, even if the action is undefended, proceed therewith within a reasonable time: the court has, however, a discretion to allow proceedings on a stale summons to continue: see Herbstein and Van Winsen: The Civil Practice of the Supreme Court of South Africa, 4^th Ed 425-6, where the main decisions on the point are discussed. Neither principle nor policy dictates that there should be a fundamental difference between the position in the High and Magistrates' Courts (subject to the express terms of the respective legislative provisions that bear on the matter). In a case of

& 29 doubt as to the rule-makers* intention it seems appropriate to strive for

equality of treatment in the respective courts, lest a plaintiff be better off

in one rather than the other for no reason apart from the size of his claim.

The second is that Rule 10 could have serious consequences for a

plaintiff; consequences, moreover, out of all proportion to the latter's

"fault". This calls for a restrictive interpretation of its effect to make it

as least burdensome as possible; differently put, it calls for a wider

interpretation of any Rule that may impact upon it in order to curtail

Rule 10's radical effect.

In all the circumstances it seems to me that on a proper

interpretation of Rule 60(5) it permits of an extension of the period of 12

months in Rule 10, either with the written consent of the opposite party

or in the exercise of the court's discretion, and the corresponding revival

30 of the summons that has lapsed. (Written consent in the majority of

cases is an unlikely prospect, but there may be instances where it would

suit a defendant to give consent in order to dispose of a matter.) In my

view the magistrate was empowered in terms of Rule 60(5) to grant the

appellant's application for an extension of time to take a further step in

the prosecution of the action and on the facts of this matter the

application should have succeeded. Mr Ford, who appeared for the

respondent, very fairly and in my view correctly, conceded during

argument that if the magistrate was empowered to grant an extension

under Rule 60(5), a sufficient case for the granting of such an order had

been made out on the papers.

The following order is made:

1) The appeal is allowed, with costs.

31

8. The order of the court a quo is set aside.

9. The order of the magistrate is altered to read:

"a) The plaintiff's application in terms of Rule 60(5) of the Magistrates' Court Rules is granted.

10. The period of 12 months in Rule 10 within which to take a further step in the prosecution of the action is extended to 14 February 1995.

11. The special plea is dismissed, with costs."

4) The respondent is to pay the appellant's costs of appeal in the
court a quo.

J W SMALBERGER JUDGE OF APPEAL

SCOTT JA )Concur

ZULMAN JA )

MELUNSKY AJA )

FARLAM AJA )