Summary of Judgment

1. Introduction

The proceedings concerned an interlocutory application brought in motion proceedings in the Gauteng Division of the High Court, Pretoria. The applicant, Johanna Magrieta Susanna Botha, sought leave to file a supplementary affidavit (with annexures) in a pending winding-up (liquidation) application that she had instituted against the respondent, 4D Health (Pty) Ltd.

The matter arose against a protracted procedural background. The applicant had launched the liquidation application asserting standing as a contingent, alternatively prospective creditor of the respondent. In parallel, she had also instituted action proceedings against the respondent and its directors under a separate case number (80758/2018). The particulars of claim in that action were amended on multiple occasions, with a “final” amendment having been effected on 24 February 2022.

In the present interlocutory application, the applicant sought to introduce the final amended particulars of claim from the action proceedings into the liquidation application as “new evidence”, contending that these amendments were material to the liquidation dispute, particularly to her locus standi. The application was opposed by the respondent.

The general subject-matter of the dispute was therefore the admissibility of further affidavits and additional material in motion proceedings, specifically whether the applicant should be permitted to place the final amended particulars of claim before the court in the liquidation application and whether doing so would be procedurally permissible and fair.

2. Material Facts

It was common cause that the applicant launched a liquidation application against the respondent on the basis that she was a contingent or prospective creditor. It was also common cause that, at the same time, she instituted action proceedings against the respondent and its directors (case number 80758/2018), and that the particulars of claim in those action proceedings were amended several times, with the final version being filed on 24 February 2022.

The applicant’s case in the interlocutory application was that the final amended particulars of claim constituted “new evidence” that only “came about” after the filing of her replying affidavit in the liquidation application on 15 October 2020. She relied on the contention that the amended particulars of claim were material to the main liquidation application, specifically because they related to (and, on her version, clarified) the basis for her standing as a contingent or prospective creditor.

The respondent disputed the applicant’s entitlement to introduce the amended particulars of claim in this way and resisted what it characterised as an attempt to bolster standing by reference to material that did not exist at the time the liquidation application was issued. The respondent also complained that granting leave would, in effect, result in a fourth set of affidavits without exceptional circumstances, and asserted that the “new evidence” was irrelevant and would cause substantial prejudice, although the judgment records that the respondent did not specify the substantial prejudice or explain why it could not be addressed through procedural accommodations or costs.

The court treated as important the following features emerging from the chronology and the parties’ positions: the prolonged history of the litigation; the fact that the applicant sought leave proactively by separate interlocutory application, rather than at the hearing of the main matter; the relationship between the action proceedings and the liquidation application; and the respondent’s opportunity to respond if leave were granted.

3. Legal Issues

The central legal questions were whether the court should exercise its discretion to permit the applicant to file a supplementary affidavit introducing the final amended particulars of claim from separate action proceedings into the liquidation application, and whether allowing this would be consistent with the principles governing the filing of additional affidavits in motion proceedings.

The dispute was primarily one of application of procedural law to the procedural facts of the case, coupled with an evaluative assessment of materiality, explanation for lateness, and prejudice. The court was required to make a discretionary value judgment about fairness and case management within the framework of the Uniform Rules and established authority on additional affidavits.

A further issue, closely connected to the relevance enquiry, was whether it was decisive that the amended particulars of claim did not exist when the liquidation application was launched, or whether the proper focus was instead on whether the underlying cause of action (said to found the applicant’s creditor status) existed.

4. Court’s Reasoning

The court approached the matter from the starting point that Rule 6(5)(e) of the Uniform Rules of Court empowers a court, in its discretion, to permit the filing of supplementary affidavits in motion proceedings. It emphasised that there is no rigid rule limiting the affidavits to three sets in all circumstances, and that each matter turns on its own facts, especially the contents of the proposed further affidavit and whether a reasonable explanation is given (or is apparent) for the late filing. In this regard, the court referred to authority recognising the discretionary nature of the enquiry and the need to assess the circumstances of the case.

Applying those principles, the court was satisfied that the explanation offered by the applicant did not indicate mala fides. The court also recorded that its attention was not drawn to prejudice that could not be remedied through ordinary procedural measures, such as an award of costs and allowing an opportunity for a supplementary answering affidavit.

The respondent’s objections were addressed in turn. On the complaint about the duration of the litigation, the court considered that the current case management would promote finalisation. The court also noted that the respondent had not identified with specificity how the passage of time caused prejudice. Against the constitutional backdrop of the right of access to justice, the court stated that it would be slow to “close the doors” to a litigant absent a clear indication of prejudice arising from the duration of the litigation.

On the argument that the amended particulars of claim did not exist when the liquidation application was instituted, the court reframed the enquiry. It reasoned that the decisive question was not whether the particulars of claim existed at the time, but whether the cause of action rendering the applicant a contingent or prospective creditor existed. The court characterised particulars of claim as an exposition of the claim, rather than the source of the cause of action itself. It accepted, in substance, that earlier iterations may have been defective in failing to make out a case against the respondent, but noted that the respondent had been cited as a defendant and that the intention to include it was clear, although imperfectly executed, and that this appeared to have been rectified by the later amendment.

In evaluating the overall fairness of permitting further material, the court attached significance to the fact that the applicant sought permission in advance through an interlocutory application rather than attempting to introduce additional material at the hearing. This procedural approach counted against any inference that the application was a veiled attempt to delay the matter or to ambush the respondent. The court accordingly concluded that the discretion should be exercised in favour of allowing the supplementary affidavit, coupled with reciprocal opportunities for the respondent to respond.

5. Outcome and Relief

The court granted leave for the applicant to file a supplementary affidavit with annexures within 10 days of the order.

It granted leave to the respondent to file a response within 10 days of receipt of the supplementary affidavit, and then permitted the applicant to file a replying response within a further 10 days.

The court reserved the question of costs for determination at the final hearing of the liquidation application.

Cases Cited

Parow Municipality v Joyce & McGregor (Pty) Ltd 1973 (1) SA 937 (C).

Afric Oil (Pty) Ltd v Ramadaan Investments CC 2004 (1) SA 35 (N).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (right of access to justice, as referenced in the judgment).

Rules of Court Cited

Uniform Rules of Court, Rule 6(5)(e).

Held

The court held that it had a discretion under Rule 6(5)(e) to permit additional affidavits in motion proceedings and that no inflexible limitation to three sets of affidavits applied. On the facts, the applicant’s explanation for seeking to file a supplementary affidavit did not demonstrate mala fides, and the respondent failed to identify prejudice that could not be addressed by procedural directions and, if necessary, a costs order.

The court further held that the fact that the final amended particulars of claim did not exist when the liquidation application was launched was not decisive. The relevant enquiry was whether the applicant’s underlying cause of action (allegedly giving rise to contingent or prospective creditor status) existed, and the amended particulars of claim were treated as an exposition of that claim. The applicant’s proactive approach in bringing an interlocutory application (rather than attempting to supplement the papers at the hearing) supported the conclusion that the respondent would not be unfairly ambushed and that justice favoured allowing the additional material, with reciprocal opportunities to respond.

LEGAL PRINCIPLES

The judgment applied the principle that, in motion proceedings, a court may permit the filing of supplementary affidavits in the exercise of a discretion conferred by Rule 6(5)(e) of the Uniform Rules of Court. The exercise of that discretion is not governed by a rigid numerical limit on affidavits, but depends on the circumstances of the case, including the nature and content of the proposed further affidavit, the adequacy of the explanation for the late filing, and the interests of fairness between the parties.

The judgment further applied the principle that alleged prejudice arising from additional affidavits must be assessed concretely, and where appropriate may be cured by procedural remedies such as permitting a further response and making appropriate costs orders. In managing the discretion, the court also treated the broader constitutional context—specifically the right of access to justice—as relevant to whether a litigant should be prevented from placing material before the court in the absence of clearly demonstrated, irremediable prejudice.

Finally, the court applied an evaluative distinction between the existence of a cause of action and the procedural formulation of that claim in particulars of claim, reasoning that particulars of claim serve to set out or articulate a claim rather than create it. On that basis, the non-existence of a particular amended pleading at the time the main application was instituted was not treated as determinative, provided the underlying cause of action grounding the asserted status (as contingent or prospective creditor) existed.