MATHONSI J: In this matter the applicant seeks an order
declaring that there is a bar operating against the 2nd Respondent
and that the special plea filed by the 2nd Respondent was filed out
of time.
On 7
February 2011 the applicant filed a notice of intention to bar which was served
on Calderwood Bryce Hendrie and Partners, the legal practitioners of the 2nd
Respondent that same day. The time
during which the 2nd Respondent was required to file a plea or other
answer to the claim expired on 14 February 2011. The 2nd Respondent managed to file
a response by close of business on that day in the form of a special plea.
The
applicant has argued that the fact that the special plea was served the
following day on 15 February 2011 nullified it.
I do not agree. The plea was
filed on time and its service a day later did not render it invalid. The applicant's attempt to bar the 2nd
Respondent on 16 February 2011 days after the plea had been filed was an
exercise in futility and of no legal consequence.
The
applicant has also attacked the merits of the special plea. That is an issue to be determined when the
matter is argued. It cannot be raised by
a separate chamber application. Heads of
argument have been filed and an application for a set down date made. The matter should therefore be set down on
the opposed roll and disposed of that way.
I
ccme to the conclusion that the application is without merit. It is accordingly dismissed with costs.
Joel Pincus, Konson and Wolhuter, 1st, 3rd,5th,6th
and 8th Defendant's Legal Practitioners
Messrs Calderwood, Bryce Hendrie & Partners, 2nd Defendant's Legal
Practitioners
Messrs Sansole and Senda, 4th
Defendant's Legal Practitioners
