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Practice and procedure “ action “ dismissal of “ application by defendant for dismissal of action on grounds that it is frivolous and vexatious “ application may not be made before a plea is filed
Practice and procedure “ plea “ special pleas, exceptions and applications to strike out “ in absence of consent between the parties, applicant must plead over to the merits “ need to comply with r 138(c) before matter can be set down
In terms of r 75(1) of the High Court Rules 1971, a defendant must file his reply in his plea to the allegations raised by the plaintiff in his declaration, ε before he makes an application for the dismissal of the plaintiff's action on the basis that it is frivolous and vexatious. This is not possible if there is no reply from the defendant. In his plea, the defendant is required to deal specifically with every allegation in the plaintiff's declaration before making an application in terms of r 75(1).
In the absence of consent between the parties to an action, r 138(c) of the ε Rules prohibits an applicant from setting down a special plea, exception or application to strike out where the applicant has not pleaded over to the merits. Failure to adhere to the Rules in this regard means that the applicant is not properly before the court.
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