Minister in the Department of Public Works and Infrastructure v Tuiniqua (Pty) Ltd t/a Tuiniqua Consulting Engineers (15113/2020) [2025] ZAWCHC 412 (5 September 2025)

Case Note

Minister in the Department of Public Works and Infrastructure v Tuiniqua (Pty) Ltd t/a Tuiniqua Consulting Engineers and Reder Construction (Pty) Ltd
Case No 15113/2020 (Western Cape Division, Cape Town)
5 September 2025

Reportability

This interlocutory decision is marked reportable because it clarifies two frequently encountered but seldom-analysed procedural questions. First, it offers a detailed exposition of the threshold test of “strict necessity” in Uniform Rule 21(2) when a party seeks further trial particulars. Second, it furnishes authoritative guidance on the inter-relationship between Uniform Rules 21(4) and 21(5), particularly on the timing of a costs order where an application to compel has been successful.

The judgment is significant for civil-procedure practitioners. It explains when a litigant may legitimately compel an adversary to amplify a plea that contains denials or confession-and-avoidance defences, and it warns against both abusive requests and inadequate replies. The court’s costs analysis is equally important: Moosa AJ holds that costs generally ought to be deferred to the trial court so that it can, with hindsight, decide whether the impugned requests were truly indispensable.

Finally, the decision is noteworthy because it synthesises earlier, scattered authorities on further particulars, integrates constitutional-interpretive methodology, and applies these principles to a construction-defect dispute involving large public-infrastructure expenditure.

Cases Cited

• Venter and Others NNO v Barrit; Venter and Others NNO v Wolfsberg Arch Investments 2 (Pty) Ltd 2008 (4) SA 639 (C)
• MN v AJ 2013 (3) SA 26 (WCC)
• Hassim v Lishiva (35381/2020) [2021] ZAGPJHC 120
• Snyman v Monument Assurance Corporation Ltd 1966 (4) SA 376 (W)
• Hardy v Hardy 1961 (1) SA 643 (W)
• Molusi and Others v Voges NO and Others 2016 (3) SA 370 (CC)
• Klip Town Clothing Industries (Pty) Ltd v Marine and Trade Insurance Co Ltd of SA Ltd 1960 (1) SA 446 (W)
• Ruslyn Mining and Plant Hire v Alexcor Ltd [2012] 1 All SA 317 (SCA)
• Thompson v Barclays Bank D.C.O. 1965 (1) SA 365 (W)
• Lotzoff v Connel and Another 1968 (2) SA 127 (W)
• Houtlands Investments (Pty) Ltd v Traverso Construction (Pty) Ltd 1976 (2) SA 261 (C)
• Wilson v Spitze 1987 (4) SA 118 (C)
• Moaki v Reckitt and Colman (Africa) Ltd and Another 1968 (3) SA 98 (A)
• Mabaso v Felix 1981 (3) SA 865 (A)
• Merryweather v Scholtz and Another 2020 (3) SA 230 (WCC)

(The judgment refers to many other authorities; only the principal precedents are listed here.)

Legislation Cited

• Constitution of the Republic of South Africa, 1996 (especially sections 34 and 39(2))
• Right of Appearance in Courts Act 62 of 1995

Rules of Court Cited

• Uniform Rules of Court 18(4); 21(1)–(5); 22; 67A

HEADNOTE

Summary

The plaintiff (Minister of Public Works and Infrastructure) sues two engineering-and-construction firms for roughly R9,8 million in damages after Block C of a Karoo police station collapsed before final completion. In preparation for trial the plaintiff delivered an extensive Uniform Rule 21(2) request, seeking 70 separate items of further particulars from the second defendant (Reder Construction). Reder responded, but the plaintiff considered several replies inadequate, and—after unanswered follow-up letters—brought an application under Rule 21(4) to compel fuller answers to paragraphs 5.6, 7.2, 7.3 and 10.7 of the request.

Moosa AJ had to decide whether the outstanding particulars were “strictly necessary” for trial preparation, whether the existing replies were insufficient, and how costs should be handled in the light of Rule 21(5). The court ultimately compelled the second defendant to supply the information within ten days, authorised an application to strike out its defence for non-compliance, and deferred the costs determination to the trial court.

Crucially, the judgment analyses the nature of vague or ambiguous denials, the permissible scope of requests touching on matters of evidence, and when a confession-and-avoidance plea triggers a plaintiff’s entitlement to clarifying particulars. It also rules that costs arising from Rule 21 disputes should, as a matter of interpretation and fairness, ordinarily be decided only after the trial when the necessity (or otherwise) of the particulars can be gauged.

Key Issues

The judgment addresses three central procedural issues. First, can a plaintiff compel a defendant to specify the location, nature and quality of “excavated finds” relied on in a defence that blames a co-defendant engineer? Second, when a plea contains a residual denial that is arguably ambiguous, is the plaintiff entitled to particulars even though Rule 21 usually forbids interrogating mere denials? Third, do the costs of a successful Rule 21(4) application follow immediately, or must they await the post-trial assessment contemplated in Rule 21(5)?

Held

The court held that each contested request sought information that was indeed strictly necessary for trial preparation. The defendant’s existing replies were either absent or so terse as to prejudice the plaintiff’s ability to brief experts, avoid surprise and marshal rebuttal evidence. Consequently, an order compelling fuller particulars was “meet”. On costs, Moosa AJ interpreted Rule 21(5) as requiring the trial court—rather than the interlocutory court—to decide, with hindsight, whether the requests and the application had been warranted; costs were therefore reserved.

THE FACTS

The Department of Public Works awarded Reder Construction a R39 million contract to build a police station at Dysseldorp in November 2014, with Tuiniqua Consulting Engineers as structural engineer. Practical completion occurred in September 2016, but Block C collapsed in May 2017 owing to foundation subsidence, rendering the building unsafe.

The Department sued both firms in October 2020 for contractual damages, alleging defective workmanship, inadequate compaction and the use of sub-standard fill (contrary to the G5 specification). Reder’s plea asserted that it followed instructions and approvals from Tuiniqua regarding the use of “excavated finds” as backfill and denied negligence. It further alleged that any failure was attributable to the engineer’s quality-assurance role.

After pleadings closed, the plaintiff served an eight-page Rule 21(2) request. The second defendant supplied lengthy answers, but the plaintiff—gearing up for expert testing of fill material—complained that certain responses were evasive or wholly missing. Counsel’s letters in May and July 2024 elicited no improvement, and the plaintiff launched the present application in December 2024. By the hearing the plaintiff trimmed its complaints, persisting only with the four outstanding paragraphs.

THE ISSUES

The interlocutory court first had to decide whether the unanswered or inadequately answered requests were strictly necessary to enable the plaintiff to prepare for trial, particularly its geotechnical evidence and cross-examination strategy. That inquiry turned on the scope of each request, the relevance of the sought facts to pleaded defences, and whether the information went merely to evidence that might emerge at trial.

Secondly, the court had to consider whether Rule 21(4) entitled the plaintiff to immediate costs, or whether Rule 21(5) obliged the court simply to reserve costs until the conclusion of the main action, where the trial judge could retrospectively adjudge necessity.

ANALYSIS

Moosa AJ embarked on an extensive discussion of Rule 21. The court emphasised that sub-rule (2) contains a high bar: only particulars strictly necessary for trial may be demanded. Nonetheless, where a plea is vague or takes the form of a confession-and-avoidance, further particulars may be indispensable to prevent unfair surprise.

Applying those principles, the court found that the plea’s reference to unspecified “excavated finds” left the plaintiff unable to determine which parts of the site, and which qualities of fill, it should sample and test. Without that knowledge its expert evidence would be crippled. Similarly, the residual denial of Mr Davids’ alleged undertaking was ambiguous; clarity was needed on whether the undertaking was denied in full or only as to timing. Finally, the identity of the engineer’s representative who approved the backfill was pivotal: companies act through human agents, and knowing who gave the instruction would inform both discovery and witness preparation.

Turning to costs, the court undertook a purposive, constitutional reading of Rule 21(5). Because the necessity of particulars can only be truly assessed after hearing the evidence, it is fairer and more consonant with the rule’s mischief to postpone the costs question to the trial court. The judge drew on Wilson v Spitze and other authorities to support this approach.

REMEDY

The application was granted. The second defendant must, within ten days, furnish sufficient particulars to paragraphs 5.6, 7.2, 7.3 and 10.7 of the plaintiff’s request. Should it default, the plaintiff may, on the same papers duly amplified, apply to strike out the defence. All costs are reserved for determination by the trial court in terms of Rule 21(5).

LEGAL PRINCIPLES

The judgment restates and develops several principles of South African civil procedure. First, a request for further particulars is permissible only where the information is strictly necessary for trial preparation, a fact-sensitive inquiry that looks to the pleadings, the defence theory and potential expert evidence. Second, even denials may trigger entitlement to particulars where the denial is vague, contains a “negative pregnant”, or forms part of a confession-and-avoidance plea. Third, companies litigate through natural-person agents, so the identity of those agents may be a proper subject of a Rule 21 request when their acts or instructions are material.

Most notably, the court holds that the costs regime in Rule 21(5) subsumes interlocutory applications under Rule 21(4). As a matter of interpretation and fairness, costs should usually be deferred until the trial court, with full knowledge of the evidence, evaluates whether the particulars proved genuinely necessary. This promotes the constitutional imperative of fair civil adjudication and discourages both tactical over-breadth and obstructive minimalism in dealing with further-particulars requests.