Simon Says Advertising (Pty) Ltd v KG Family Holdings (Pty) Ltd

The Plaintiff instituted action against the Defendant claiming R196,487.00 based on two agreements: an initial agreement for supply of goods and services, and a subsequent Retainer Agreement. The Defendant filed a Plea denying liability and alleging overpayment, with a Counterclaim that was later withdrawn. After various procedural interludes, the Plaintiff served a Request for Trial Particulars pursuant to Rule 21. The Defendant failed to respond, leading Noncembu J to grant an order on 7 November 2023 directing the Defendant to provide the trial particulars within 10 days. The Defendant failed to comply with this order, prompting the Plaintiff to apply for the Defendant's Plea to be struck out for non-compliance with the court order.

• Whether the Court has jurisdiction to strike out a Plea for failure to furnish trial particulars in compliance with a court order
• Whether non-compliance with a court order to furnish trial particulars constitutes wilful and contumacious conduct
• Whether Rule 21(4) provides a specific remedy that can be invoked without first complying with Rule 30A
• What factors should be considered by a court in exercising its discretion to strike out a plea for non-compliance
• Whether the 'double-barrelled approach' to claiming specific performance and damages remains valid following Rademeyer v Ferreira

The Court ordered: (a) The Defendant to furnish a response to the Plaintiff's Request for Trial Particulars dated 23 August 2023 on or before 3 December 2024; (b) In the event of non-compliance, the Defendant must show cause on 5 December 2024 why the Plea should not be struck out with costs on the attorney-and-client scale and why judgment should not be granted in favour of the Plaintiff; (c) Costs of the application on the attorney-and-client scale to be paid by the Defendant.

A court has discretion under Rule 21(4) to strike out a defence where a party fails to comply with a court order directing the furnishing of trial particulars. Non-compliance with a court order to furnish trial particulars without any reasonable explanation constitutes wilful and contumacious conduct. Court orders remain binding until set aside and must be complied with regardless of their perceived validity. In exercising discretion whether to strike out a plea, a court must consider all relevant factors including: the reasons for the party's non-compliance, whether sufficient information was provided to justify the order for trial particulars, the conduct of both parties throughout the litigation, and any substantive legal issues that may arise at trial. The court retains inherent jurisdiction to craft appropriate orders that serve as sufficient deterrent and penalty while ameliorating harsh effects, including granting a final opportunity to comply with an order to show cause.

The Court made several obiter observations: (1) It is unclear why the action was instituted in the High Court rather than the Magistrate's Court given the amount claimed (R196,487.00). (2) The Court referenced the Constitutional Court's comments in Rademeyer v Ferreira regarding the 'double-barrelled approach' to claiming both specific performance and damages, noting that this practice is now in serious doubt, though the Constitutional Court did not definitively rule on whether it should be discarded. (3) The Court observed that potential prescription issues could arise in relation to the alternative damages claims, particularly in light of Rademeyer which held that prescription for damages claims commences to run at the earliest at the time of breach, and that a plaintiff cannot obtain an order for liability for damages not yet sustained. (4) The Court noted that there is debate about whether Rule 30A must be complied with before invoking the specific remedy in Rule 21(4), though this was not determinative in this case.

This judgment is significant in South African civil procedure for: (1) reaffirming the principle that court orders are binding and must be obeyed until set aside; (2) confirming that wilful non-compliance with court orders regarding trial particulars will attract punitive cost orders; (3) demonstrating judicial discretion in crafting appropriate remedies that balance deterrence with fairness; (4) highlighting the continued debate about the 'double-barrelled approach' to pleading specific performance and damages in light of the Constitutional Court's decision in Rademeyer v Ferreira; and (5) addressing the interplay between Rule 21(4) and Rule 30A in applications to compel compliance with procedural orders.