Rule 13 Third-Party Procedure: Serving a Notice After Close of Pleadings

Rule 13 of the Uniform Rules of Court states the following:

“13. (1) Where a party in any action claims –

• as against any other person not a party to the action (in this rule called a ‘third party’) that such party is entitled, in respect of any relief claimed against him, to a contribution or indemnification from such third party; or
• any question or issue in the action is substantially the same as a question or issue which has arisen or will arise between such party and the third party, and should properly be determined not only as between any parties to the action but also as between such parties and the third party or between any of them, such party may issue a notice, hereinafter referred to as a third party notice…which notice shall be served by the sheriff.”

The Third-Party Notice must be delivered before close of pleadings.

Rule 13(3)(b) states the following:

“(b)      After the close of pleadings, such notice may be served only with the leave of the court.”

This sub-rule therefore provides that, after close of pleadings, a third-party notice may only be served with the leave of the court. If the applicant for such leave failed to join a third party prior to the close of pleadings when it would have been possible to do so, he seeks an indulgence.

This means that prior to delivering the third-party notice, such party must first bring an application to court to condone the late delivery of the third-party notice. The courts have a wide discretion to grant orders in terms of this rule, as its refusal might result in multiplicity of actions.

Justification for granting Order condoning late delivery of Third Party Notice

Though it may not be essential that a prima facie case on the merits be made out, it is generally required that and it has been held that an applicant under this sub-rule had to:

• Furnish a satisfactory explanation for his failure to issue the notice before close of pleadings; and
• Make out a prima facie case on the merits against the third party.

Where an applicant has failed to comply with the second requirement it was held that it would in the circumstances of the case not be proper exercise of the court’s discretion to bar an applicant from obtaining such relief, particularly in view thereof that such step will in all probability leave the applicant without any remedy against such a respondent.

In the case of Mercantile Bank Ltd v Carlise 2002 (4) SA 886 (W) the approach to be followed was formulated as follows:

“The third-party notice must be examined, as one would examine pleadings in an action to ascertain whether it is excipiable in that it does not disclose a cause of action.

If it is excipiable, then the joinder would be refused. If it is not excipiable, then the totality of the allegations in the affidavits must be examined to see whether the case sought to be made against the third party is so patently unfounded, notwithstanding that the pleading may pass the excipiability test, that it ought not to be allowed to proceed to trial.”

This therefore reiterates the stance that when one is bringing an application for the court to condone the late delivery of a third-party notice, they must not only provide sufficient explanation for the failure to deliver same before close of pleadings, but that there is a valid cause of action against the third party.

In the case of Pitsiladi v Absa Bank 2007 (4) SA 478 (SE), contrary to the aforesaid, the view that was expressed is that a draft third party notice annexed to an application under sub-rule 3 is not a pleading, at least not until such a time as the applicant has been granted leave as envisaged by the sub-rule. This emphasizes the importance of not only relying on the annexed draft third party annexure to the application for condonation but ensuring that proper facts giving rise to the claim against the third party are properly set out in the application for leave to deliver the third-party notice.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.