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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number : 046444/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES/NO
DATE 10/01/25
SIGNATURE
In the matter between:
WEST DUNES PROPERTIES 92 (PTY) LTD 1st Applicant
(REG NO: 2004.006372/07)
MOREWAYS TRADING CC 2nd Applicant
(REG NO: 2007/163420/23)
ZUIKERBOSCH BIOCAL PRODUCTS CC 3rd Applicant
(REG NO: 2007/163403/23)
SILVER SPADE PROPERTY BROKERS CC 4th Applicant
(REG NO: 2007/163395/23)
STONE EDGE PROPERTIES CC 5th Applicant
(REG NO: 2007/170025/23)
HENDRIK PETRUS HERMANN PISTORIUS 6th Applicant
(IDENTITY NO: 7[...])
MILLS INCORPORATED T/A MILLS & GROENEWALD 7th Applicant
ATTORNEYS (REG NO: 1997/015884/21)
and
DEREK JOHAN KRUGER N.O. Responden t
(in his capacity as executor in the
deceased estate HPH Pistorius)
JUDGMENT
Joyini J
INTRODUCTION
[1] This is an opposed application in terms of Rule 30(1) of the Uniform Rules of
the Court (“Rule 30”) . The applicants are the respondents in the main
application. The applicants raised the issue of an alleged non -joinder, in the
main application, by making use of the provisions of Rule 30. It is accordingly
this opposed Rule 30 application that is before court.
[2] It is the applicant’s contention that they are entitled to the relief sought against
the respondent. The applicants seek a cost order against the respondent in his
personal capacity.
[3] It is the respondent’s contention that the applicants are not entitled to any relief
and that the application stands to be dismissed with costs on a scale as
between attorney and client.
[4] I am indebted to the parties’ counsel for their contribution to this judgment
through their submissions, oral arguments, Heads of Argument, affidavits, etc.
In crafting this judgment, I have relied a lot on their contribution .
BACKGROUND FACTS
[5] This is an interlocutory application in terms of Rule 30(1) notice. The applicants
in this interlocutory application are the first to seventh respondents in the main
application, and the respondent in this interlocutory application is the applicant
in the main application.
[6] The respondent is the sole executor of the deceased estate of the late Mr
Pistorius. The sol e heir is Mrs Johanna Adriana Pistorius, who is the surviving
spouse of the late Mr Pistorius .
[7] In the main application, the respondent, as applicant, seeks an order that the
first to ninth respondents be ordered to supply a veritable multitudes of
documents, some going back to 2014.
[8] The respondent cited neither Mrs Pistorius nor the Master as parties in the
main application.
ISSUES REQUIRING DETERMINATION
[9] The issues that require the court’s determination are as follows:
[9.1] Whether condonation for the late launching of this application should be
granted;
[9.2] Whether it is competent for the applicants to raise the issue of non -joinder of a
party in application proceedings in the main application by utilising the
provisions of Rule 30 of the Uniform Rules of the Court;
[9.3] If so, whether the applicants have made out a case in the founding affidavit to
whether there has been non -joinder of the sole heir and the Master; and
[9.4] Whether the Rule 30 application has an ulterior motive of object and whether
it constitutes an abuse of proceedings .
[10] In assessing this matter, I shall first consider the point in limine to determine
whether condonation for the late launching of this application should be
granted.
POINT IN LIMINE: CONDONATION
[11] Rule 30(2) of the Uniform Rules of the Court requires that an application may
be brought in terms of Rule 30(1) to set aside an irregular step only if, in terms
of paragraph 30(2)(b), ‘the applicant has, within ten days of becoming aware
of the step by written notice afforded his opponent an opportunity of removing
the cause of complaint within ten days.’
[12] The delay is five (5) days. The applicants seek condonation for the late filing
of the notice in terms of Rule 30. The respondent will not suffer any prejudice
if condonation is granted.
Legal Principles applicable to condonation
[13] Since the judgment in Melane v Santam Insurance Co Ltd :1, the test has been
slightly broadened. Now the test for determining condonation is whether it
would be ‘ in the interests of justice’ to do so. The interests of justice must be
determined with reference to all relevant factors. However, some of the factors
may justifiably be left out of consideration in certain circumstances.
[14] The Supreme Court of Appeal (SCA) in Mulaudzi v Old Mutual Life Assurance
Company (SA) Limited ,2 restated the factors that are to be given due
consideration in a condonation application as stated in Melane . It is stated:
“Factors which usually weigh with this court in considering an application for
condonation include the degree of non -compliance, the explanation thereof,
the importance of the case, the respondent's interest in the finality of the
judgment of the court below, the convenience of this court and the avoidance
of unnecessary delay in the administration of justice. ”
1 1962 (4) SA 531 (A), at 532C -G.
2 2017 ZASCA 88.
[15] In Grootboom v National Prosecuting Authority,3 the following is stated: “ It is
now trite that condonation cannot be had for the mere asking. A party seeking
condonation must make out a case entitling it to the court's indulgence. It must
show sufficient cause. This requires a party to give a full explanation for the
non-compliance with the rules or court's directions. Of great significance, the
explanation must be reasonable enough to excuse the default.”
Conclusion on condonation
[16] In determining this matter, I must be guided by the well -established principles
(referred to above ) applicable to condonation. In this regard, I need to draw
certain inferences and weigh probabilities as they emerge from the parties’
respective submissions, affidavits, heads of arguments and oral arguments by
their counsel.
[17] On whether condonation for the late launching of this application should be
granted, I am of the view that an applica nt for condonation must give a full
explanation for the delay. The applicant s, in this case, did give a full
explanation. The applicant’s explanation must cover the entire period of delay
and it must be reasonable. In casu , the applicant s’ explanation did cover the
entire period. It is my considered view that the explanation given by the
applicant s has managed to meet all these requirements. In view of these
considerations, it follows that the applicant s’ application for condonation must
succeed .
APPLICANTS’ ARGUMENT ON THE JOINDER OBJECTION RAISED IN TERMS
OF RULE 30
[18] According to the applicants, the first question which must be answered is
whether an objection of non -joinder can be raised in terms of Rule 30? They
are of the view that this question has been answered in the affirmative.
3 2014 (2) SA 68 (CC) at paragraph [23].
[19] The applicants quoted the following dictum of Trengove J (as he then was) in
Skyline Hotel v Nickloes:4 “From my experience, it has still always been the
practice to raise an objection of this nature by way of a special plea. The
advantage of this procedure is that, if it were to be necessary, the Court would
hear evidence in regard to the objection. Although it is the practice to raise
this kind of objection by way of a plea, it nevertheless appears to me that the
procedure of Rule 30 can also be used for this purpose.”
[20] The applicants argue that this passage was referred to without demur by van
Niekerk J in Smith v Conelect .5 According to them, the same views were
expressed more recently in Sherenisa v Minister of Safety .6 They are
therefore of the view that non-joinder objection can be raised in terms of Rule
30.
RESPONDENT’S ARGUMENT ON THE JOINDER OBJECTION RAISED IN
TERMS OF RULE 30
[21] The respondent submits that any authority to the effect that Rule 30 may be
used to invoke an issue of non -joinder, is firstly, on a factual level different
and secondly, must be obiter remarks and thirdly, must be old authority, and
fourthly, must have been wrongly decided. The respondent further submits
that, for instance, in Skyline Hotel v Nickloes,7 a judgment on which the
applicants rely, it appeared ex facie the contract annexed to the particulars of
claim on which the plaintiff sued, that other parties must possibly be joined,
but importantly the court did not decide the point, and said on the very next
page of the reported judgment (at page 172 A): “…..met die meriete van die
aansoek kom, is dit vir my egter nie nodig om uitsuitsel oor hierdie bepaalde
punt te gee nie.”
[22] According to the respondent, the Skyline judgment is therefore not authority
that Rule 30 may be used to raise non -joinder, and it follows also then that the
Smith v Conelect (that dealt with an exception rule 23) judgment relied on by
4 1973 (4) SA 170 (W) at 159.
5 1987 (3) SA (W) at 691H to 692B.
6 2012 JDR 0469(FB) at paragraph [8].
7 1973 (4) SA 170 (W) at 159.
the applicants, is also not authority for the proposition that Rule 30 may be
used to raise matters of non -joinder as the applicants did in this matter. The
respondent argues that the last -mentioned judgment was different because
the court in that matter decided an exception and not an application in terms
of Rule 30.
[23] The respondent further argues in De Polo v Dreyer and Others ,8 that what
was said in Skyline was obiter, and confirmed that the court in Skyline did not
decide the point. H e is therefore of the view that what Skyline said was obiter
and Smith v Conelect confirms Skyline . In other words, Smith v Conelect does
not assist because it relies on the obiter in Skyline. The respondent is, on this
basis, adamant that Rule 30 cannot be used for raising alleged non -joinder.
LEGAL PRINCIPLES APPLICABLE TO RULE 30 AND ANALYSIS
[24] The question as to whether all necessary parties had been joined does not
depend upon the nature of the subject matter of suit but upon the manner in
which and extent to which the court’s order may affect the interest of third
parties9. The test is whether or not a party has a direct and substantial interest
in the subject matter of the action, that is, a legal interest in the subject matter
of the litigation which may be affected prejudicially by the judgment of the
court .10
[25] The rule is that any person is a necessary party and should be joined if such a
person has a direct and substantial interest in any order the court might take
or if such an order cannot be sustained or carried out into effect without
prejudicing that party .11
[26] In Bester N.O and others v Target Brand Orchards (Pty) Ltd and Others12 Hockey AJ
discussed the requirements of Rule 30 as follows: “[13] A court will grant a rule 30(1)
application if it is satisfied that there is an irregular step, that the party brin ging such
8 1989 (4) SA 1059 (WLD) at 1063.
9 Amalgamated Engineering Union v Minister of Loabour 1949 (3) SA 627 (A) at 657.
10 Henri Viljoen (Pty) Ltd v Awerbuch Bros 1953 (2) SA 151 (O) at 168 -70.
11 Kethel v Kethels’ Estate 1949 (3) SA 598 (A) at 610.
12 (22593/2019) [2020] ZAWCHC 183 (21 December 2020).
application has not taken any further step in the cause of the matter with knowledge
of such irregular step, has given its opponent notice to remove such step within 10
days of the former becoming aware of the step, and importantly, if the applicant will
suffer prejudice unless the irregular step is removed. In this regard, see Afrisun
Mpumalanga (Pty) Ltd v Kunene NO and Others 1999(2) SA 599 (TPD) where it was
held by Southwood J (at 611 C -F); ‘With regard to the Rule 30 application Mr Van
der Linde point ed out that such an application will be granted only where the
irregular step would cause prejudice to the applicant seeking to set it aside. In
support of this argument he referred to Trans -African Co Ltd v 7 Maluleka 1956 (2)
SA 273 (A) at 276 F -H; SA Metropolitan Lewensversekering -maatskappy Bpk v
Louw NO 1981 (4) SA 329 (O) at 333 D -F and 333 H -334 E; De Klerk v De Klerk
1986 (4) 424 (W) at 426 F - 427 B; Consani Engineering (Pty) Ltd v Anton Steinecker
Maschinenfabriek GmbH 1991 (1) SA 823 (T) at 824 G -H; and Sasol Industries (Pty)
Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty) Ltd t/a L H Marthinusen 1992 (4)
SA 466 (W) at 496 G. The prejudice that is referred to is prejudice which will be
experienced in the further conduct of the case if the irregular step is not set aside.
There is no prejudice if the further conduct of the case is not affected by the irregular
step and the irregular step can simply be ignored.’”
CONCLUSION
[27] The Uniform Rules of the Court seek to regulate procedure (form) and not
substance. Any complaint raised in terms of Rule 30 therefore speaks to an
alleged procedural irregularity in the conduct of the litigation. Therefore, in
law, Rule 30 deals with procedural irregularities relating to the rules of court.
The issue of non -joinder is not a procedural issue, because the substantive
law dictates when a party needs to be joined to litigation.
[28] Rule 30 envisages that any irregular step complained of must cause prejudice
to the party seeking to set it aside. It is accepted though, that even if a
procedural step may be found to be irregular but if it presents no prejudice in
the further conduct of the case to the party complaining thereof, there would
be no need to set it aside. See Trans -African Insurance Co Limited v
Maluleka 1956 (2) SA 273 (A) at 276F -H. In Maluleka ’s case Schreiner JA
held that technical objections to less than perfect procedural steps should not
be permitted, in the absence of prejudice, to interfere with the expeditious
and, if possible, inexpensive decision of cases on their real merits.
[29] In an application under Rule 30, a court will set aside the complained -of irregular
step only if it would cause prejudice to the complaining party . On the other hand,
even if a case is made out for the relief sought, a court has a discretion not to yield to
the aggrieved party's request.
[30] There is no case before court to the effect that the applicants are prejudiced, or that
the applicants will experience any prejudice in the further conduct of the case if the
alleged irregular step is not set aside.
[31] On a conspectus of all the evidence placed before court, I am satisfied on a
holistic evaluation of the evidence presented that the applicants ha ve not
made out a case for the relief they seek. In view of these considerations, it
follows that the applicant s’ interlocutory application in terms of Rule 30(1) of
the Uniform Rules of the Court must fail.
COSTS
[32] I have considered both parties’ argument relating to the costs of this
application. I am accordingly not inclined to grant costs in either party’s
favour.
ORDER
[33] In the circumstances, I make the following order:
[33.1] The applicants’ application for condonation for the late filing of the notice in
terms of Rule 30 of the Uniform Rules of the Court is granted.
[33.2] The applicants’ interlocutory application in terms of Rule 30 of the Uniform
Rules of the Court is dismissed.
[33.3] No order as to costs .
T E JOYINI
JUDGE OF THE HIGH COURT, PRETORIA
APPEARANCES:
For the applicant s: Adv BD Hitchings
Instructed by : Mills & Groenewald Attorneys
Email : bjmills@mgp.co.za or anneri @mgp.co.za
For the respondents : Adv Jacques Eastes
Instructed by : Tim Du Toit & Co. Attorneys
Email: kstoffberg@timdutoit.co.za
Date of Hearing: 15 November 2024
Date of Judgment: 10 January 2025
This Judgment has been delivered by uploading it to the Court online digital data
base of the Gauteng Division, Pretoria and by e -mail to the Attorneys of record of the
parties. The deemed date and time for the delivery is 10 January 2025 at 10h00.