It is common knowledge that a party serving and filing its notice of intention to defend within the requisite 10 (ten) days in action proceedings. However, it is imperative to note that the rules of exceptions state that following:
“Rule 23(1)(a) – where a party intends to take an exception that a pleading is vague and embarrassing such party shall, by notice, within 10 days of receipt of the pleading, afford the party delivering the pleading, an opportunity to remove the cause of complaint within 15 days of such notice”.[1]
Thus, should a party intend on raising an excipiable point that is vague and embarrassing to a plaintiff’s particular of claim, such party should file its notice of intention to defend simultaneously with the notice to remove cause of complaint in terms of Rule 23(1)(a).
Subsequent to the party filing its amended pages to cure the excipiable points taken, confusion may arise out of Rule 28(8)[2] which states the following:
“Any party affected by an amendment may, within 15 days after the amendment has been effected or within such other period as the court may determine, make any consequential adjustment to the documents filed by him, and may also take the steps contemplated in rules 23 and 30.”
The confusion or question that may arise would be that does one have 15 days to file documents that may require adjustment and the respective response that follows after the amended pages, for example a plea to the particulars of claim.
However, clarity has been afforded in the commentary of Rule 28(8)[3] stating that where no plea has yet been filed, the defendant is put on terms to comply with rule 22(1) and shall file a plea within 20 days (failing which a notice of bar would have to follow in order to compel delivery of the plea).
Lastly, it is important to note that Rule 28(8) is limited to circumstances where an amendment produces a risk of a ripple effect on pleadings that were already filed by the parties and such risks may render the filed pleadings non-responsive to the amended pleading. Therefore, the need to adjust the filed pleadings would be for the purpose of allowing the pleadings to be responsive to the amended pages and the steps to follow and the 15 day period applies only under the aforesaid circumstances.[4]
[1] Uniform Rules of Court RS 20, 2022, D1-293.
[2] Uniform Rules of Court RS 21, 2023 D1- 329.
[3] Uniform Rules of Court RS 17, 2021, D1-344.
[4] See the case of Nqabeni Attorneys Incorporated v God Never Fails Revival Church (Unreported Judgment with case number: 40739/2017).
