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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2023 - 070664
In the matter between:
BODY CORPORATE OF VALLEYVIEW CENTRE APPLICANT
and
QUEEN NEW YORK COSMETIC (PTY) LTD (IN LIQUIDATION) RESPONDENT
This judgment was handed down electronically by circulation to the parties' and/or the parties'
representatives by email and by being uploaded to Case lines. The date and time for hand -
down is deemed to be 10h00 on 20 December 2024.
_________________________________________________________________________
REASONS
_________________________________________________________________________
WANLESS J
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED. YES
……… ....
B.C. WANLESS 20 December 2024
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Introduction
[1] On the 14th of March 2024, having heard argument on the 4th of March 2024, this Court
handed down an order under case number 2023 – 070664. Queen New York Cosmetic
(Pty) Ltd (“the Respondent”) has requested reasons for this Court granting the order
that it did.
The order
[2] The order reads as follows:
1. The application for the winding-up of the Respondent is postponed sine die.
2. The Respondent is to file its Answering Affidavit, if any, within fifteen (15) days of the
date of this order.
3. The Respondent is ordered to pay the costs occasioned by the postponement on the
4th of March 2024.”
The facts
[3] In the application instituted by the Body Corporate for the Valleyview Centre (“the
Applicant”) for the winding-up of the Applicant (“the application”) the facts and the history
of the matter when it came before this Court (on the unopposed motion court roll), were
largely common cause. As at the 4th of March 2024 the real or sole dispute between the
parties (as dealt with hereunder) was a procedural/interlocutory one.
[4] The facts which were common cause or could not be seriously disputed by either of the
parties, were the following:
4.1 the application was instituted by way of a Notice of Motion dated 29 June 2023;
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4.2 the application papers were served upon the Respondent on 28 August 2023;
4.3 the application was set down on the unopposed motion court roll for hearing on
the 12th of September 2023;
4.4 shortly before the 12 th of September 2023, on the 7 th of September 2023, the
Respondent filed its notice to oppose the application;
4.5 the application was removed from the roll of the unopposed motion court on the
12th of September 2023, costs to be costs in the cause;
4.6 on the 28th of October 2023 the Respondent filed a notice in terms of subrule
35(12)(a). Having filed its notice to oppose the application on the 7 th of
September 2023 the Respondent, in terms of subrule 6 (5)(d)(ii), had to file its
Answering Affidavit on or before the 28 th of September 2023.In the premises,
the Notice in terms of subrule 35(12)(a) was filed after the date by which the
Respondent was to file its Answering Affidavit (by one month);
4.7 the Applicant elected not to respond thereto and the Respondent did not take
any further steps in terms of, inter alia, rule 35;
4.8 the matter was set down once again for hearing on the unopposed motion court
roll on the 4th of March 2024;
4.9 shortly before the 4th of March 2024, on the 1st of March 2024, the Respondent
filed a notice in terms of rule 30A;
4.10 the matter came before this Court on this Court’s unopposed motion roll on the
4th of March 2024.
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The respective arguments on behalf of the parties
The Respondent
[5] In terms of its Practice Note the Respondent sought an order that the application be
removed from the roll and the Applicant be ordered to pay the costs thereof on the scale
of attorney and client. This relief was set out in a Draft Order uploaded onto caselines
by the Respondent. With regard to the issue of costs the Respondent also uploaded
two further Draft Orders, one of which made provision that the Applicant pay the costs
on the party and party scale whilst the o ther provided for the costs to be costs in the
cause of the application.
[6] The principal basis for this relief was that in light of the Respondent having filed the
notice in terms of subrule 35(12)(a) it was not necessary for the Respondent to file an
answering affidavit. In the premises, it was submitted, on behalf of the Respondent, that
it was not competent for the Appl icant to have set the matter down on the unopposed
motion roll on the basis that the Respondent had failed to file an answering affidavit in
terms of the Uniform Rules of Court. Hence the filing by the Respondent of the notice
in terms of rule 30A on the g rounds that, by doing so, the Applicant had carried out an
irregular step. In the premises, it was submitted that the only order that this Court could
make was to remove the matter from the roll with an appropriate order as to costs. Other
grounds have bee n raised by way of, inter alia , correspondence received from the
Respondent’s attorneys. Where applicable, these will be dealt with herein
The Applicant
[7] In brief, the Applicant submitted that the filing of the Respondent’s notice in terms of
subrule 35(12)(a) did not suspend the requirement that the Respondent file its
Answering Affidavit in the application. Further, it was submitted that the said notice failed
to satisfy the requirements of that subrule. In li ght of the reasons for the order that this
Court made, it is not necessary to deal with the latter submission.
[8] Following thereon, the Applicant submitted that it was not an irregular step for the
Applicant to set the matter down on this Court’s unopposed motion roll and, in light of
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the failure of the Respondent to file an answering affidavit or seek relief in terms of, inter
alia, the provisions of rule 27, it was competent for this Court to grant an order winding-
up the Respondent (either on a provisional or final basis).
The law
[9] The correct legal principles to be applied in this matter are so well-established that they
may even be described as “trite”. In the premises, it is not the intention of this Court to
burden these reasons for the order made unnecessarily, by, inter alia, repeating copious
and oft repeated excerpts/citations from numerous authorities dealing therewith. Rather,
this Court will attempt (as far as possible) to provide a succinct summary thereof.
[10] It was common cause between the parties that in the matter of Potpale Investments
(Pty) Ltd 2016 (5) SA 96 (KZP), Gorven J (as he then was) held, inter alia, that the filing
of a notice in terms of subrule 35(12) does not suspend the time limit in which a party is
to file a further pleading (at paragraph [18] of the judgment). Moreover, this Court did
not understand there to be any dispute between the parties that , whilst Potpale is the
decision of a single Judge , the aforesaid principle has not been set aside by any
superior court.
[11] This is correct. In fact, it is clear that the finding of the court in Potpale has received
judicial approval from the Supreme Court of Appeal (“the SCA”) where, in the matter of
Democratic Alliance v Mkhwebane 2021 (3) SA 403 (SCA), it was noted, with approval
(at paragraph [47 ] of the judgment ]) that, in Potpale, Gorven J was of the view
that“…….a party confronted with time limits within which to plead or file affidavits could
plead, or file opposing affidavits, and then compel the documents and, if thereafter so
advised, amend or supplement what he has already filed. Or such party could apply to
court to extend the time limits pending the production of the documents sought”. Further,
the SCA stated (at paragraph [48] of the judgment) , that “There is much to commend
the reasoning and the approach in Potpale. ” The fact tha t the SCA distinguished
Mkhwebane from Potpale on the facts, in no way whatsoever detracts from the principle
enunciated in the latter decision. Furthermore, the submission by the Respondent’s
attorneys, in a letter dated 30 October 2024, that, inter alia, Potpale and Distell should
be “ignored” in light of Mkhwebane, is simply incorrect and based upon an incorrect
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interpretation of Mkhwebane. Also, the averments made in the same letter that the
capital sum and/or the interest thereon, upon which the application for the winding -up
of the Respondent was founded, are not correct, were irrelevant when this Court made
the order that it did on the 14th of March 2024.
[12] Shortly thereafter, in the matter of Caxton and CTP Publishers and Printers Limited v
Novus Holdings Limited [2022] 2 All SA 299 (SCA) (9 March 2022) the SCA once again
confirmed the decision of the court in Potpale when it was held (at paragraph [85]
thereof) that:
“ There is nothing in the language of rules 35(12) and 30A to su ggest that once a
demand has been made for the production of the documents to which the rule 35(12)
notice relates, the party seeking such documents is excused from complying with the
timeframes prescribed in terms of Uniform Rule 6(5)(d)(ii) or 6(5)(e), as the case may
be. In Potpale Investments (Pty) Ltd v Mkhize, Gorven J rightly observed that the
delivery of a notice in terms of rule 35(12) or (14) does not suspend the period referred
to in rule 26 or any other rule. Whilst there is much to be said for the view expressed by
the learned Judge, sight should however not be lost of the fact that it is open to the
court, in the exercise of its discretion, to extend the time periods prescribed in terms of
the rules whenever a proper case therefor has been made out by the party seeking such
indulgence. Indeed, this is what Uniform Rule 27 itself contemplates. “(Emphasis
added)
[13] In addition to the aforegoing (as accepted by both parties when the matter came before
this Court on 4 March 2024) the court in Distell v Naidoo (unreported) KZP case number
2557/2016 dated 4 December 2019, held (at paragraphs [68] and [ [69] of the judgment)
that:
“Does the delivery of the rule 35(12) notice suspend the 15-day period in which
the respondents are to file an answering affidavit?
[68] There appears to be no authority on this issue apart from a reference in the
judgment of Gorven J in Potpale Investmen ts (Pty) Ltd v Mkhize. A reading of rule
35(12) and (14) does not indicate that delivery of such notice suspends the period
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referred to for the filing of an answering affidavit. In addition, although rule 35(12)
imposes sanctions for non -compliance, it doe s not indicate that delivery of any
pleadings and/or any affidavits is suspended pending compliance with the rule. A litigant
can utilise the provisions of rule 27 to ask for an extension of any time period not
provided for in terms of the rules.
[69] Having regard to the judgment of Gorven J in Potpale, it would appear that he was
of the view that the delivery of the rule 35 notice did not suspend the period in which the
defendant was obliged to deliver a plea. Consequently, the enrolling of the default
judgment was not an irregular step in terms of rule 35(12). A document referred to in an
affidavit may also fall within the ambit of the rule. However, the obligation of a party to
produce such a document is subject to limitations such as relevance. I agre e that the
filing of the rule 35(12) notice did not suspend the dies and that the respondents ought
to have utilised the provisions of rule 27 to request an extension of the dies.”
[14] More recently, on the 2nd of September 2022,Dippenaar J delivered a judgment, in this
Division, namely Industrial Development Corporation of South Africa (“IDC”) v Reddy
and Others (unreported), case number 5159/2021 (2 September 2021).Not only do the
facts of that matter bear a remarkable similarity to those of the present matter but the
well-written judgment of the learned Judge provides (a) an invaluable history of the
relevant jurisprudence pertaining to the issue at hand following Potpale until the delivery
of that judgment and (b) explains much of the reasons why this Court granted the order
on the 4th of March 2024 that it did.
[15] In application proceedings t he Applicant contended that it was entitled to default
judgment in the absence of an answering affidavit, whilst the Respondents sought an
order striking the application from the roll, together with punitive costs (at paragraph [2]
of the judgment). The respondents argued that as there was an opposed interlocutory
application pending to compel discovery under subrule 35(14) which had been launched
during February 2022 and that the enrolment of this application on the unopposed roll
was flawed, constituting an a buse of the process of court (at paragraph [ 3] of the
judgment).
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[16] The Applicant's stance was that it was entitled , as a matter of law, to proceed with the
main application in the absence of an answering affidavit. Reliance was placed on
Potpale and Dippenaar J noted that Gorven J had held that the delivery of a rule 35
notice did not suspend the period in which the defendant was obliged to deliver a plea.
The learned Judge further noted that this reasoning was also followed in Distell, where,
in the context of a notice in terms of rule 35(12) , it was held that the delivery of a rule
35(12) notice did not suspend the relevant time periods and the Respondent should
have availed itself of the remedies envisaged by rule 27 to extend any time period n ot
provided for in terms of the rules (at paragraph [8] of the judgment).
[17] In traversing earlier decisions the court in IDC also noted that in Mkhwebane (supra),
Navsa JA commended the reasoning in Potpale and pointed out that the party seeking
documents would be put to a choice whether to file an answering affidavit or seek an
extension of time pending the finalisation of an application to compel production of
documents (at paragraph [9] of the judgment). Dippenaar J further noted (at paragraph
[10] of the judgment) that the reasoning in Potpale was confirmed by the SCA in Caxton
(supra), wherein Petse AP confirmed the finding of Gorven J that delivery of a notice in
terms of subrule 35(12) or subrule 35(14) does not suspend the period referred to in
rule 26 or any other rule. Petse AP further pointed out:
“There is nothing in the language of rules 35(12) and 30A to suggest that once a
demand has been made for the production of the documents to which the rule 35(12)
notice relates, the party is excused from complying with the time frames prescribed in
terms of Uniform Rule 6(5)(d)(ii) or 6(5)(e), as the case may b e. In Potpale, Gorven J
rightly observed that the delivery of a notice in terms of r35(12) or (14) does not suspend
the period refe rred to in r26 or any other rule. Whilst there is much to be said for the
view expressed by the learned Judge, sight should h owever not be lost of the fact that
it is open to the court, in the exercise of its discretion, to extend the prescribed time
periods prescribed in terms of the rules whenever a proper case therefor has been made
out by the party seeking such indulgence . Indeed, this is what Uniform Rule 27 itself
contemplates.” (Emphasis added).
[18] In the premises, the court in IDC came to the (correct) decision that the Respondents
in that matter (as is the case for the Respondent in the present matter) is not left without
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a remedy, which a court in the exercise of its discretion may grant (at paragraph [11] of
the judgment).
[19] The Respondents in IDC sought to distinguish Potpale on the ground that it pertained to
action proceedings and a notice of bar under rule 26, whereas the proceedings in IDC
were application proceedings where there is no similar provision to rule 26 which
applies. In the present matter this distinction can also be made and the Respondent
relied thereon.
[20] In turn, the Applicant in IDC argued that in Potpale the Respondent had not launched
proceedings to compel compliance with its subrule 35(12) and 35(14) notices and it was
in this context that it (the Applicant) concluded that the Respondent did not have a right
to the documentation sought and could not engineer a stay of the Plaintiff’s proceedings.
This argument is also relied upon by the Applicant in the present proceedings before
this Court.
[21] It was also noted by the court in IDC (at paragraph [14] of the judgment) that reliance
was further placed by the Respondents on Sanniesgraan CC v Minister of Police 2021
JDR 2057 (NWM) and the authorities referred to therein. However, Dippenaar J
correctly pointed out that in Potpale, Gorven J referred to and considered the very
authorities relied on by the Respondents as referred to in Sanniesgraan. In the
premises, Dippenaar J, insofar as the reasoning in Sanniesgraan diverged from that in
Potpale, declined to follow Sanniesgraan on the basis that the weight of the authorities
supported the interpretation in Potpale.
[22] Dealing with these arguments as raised by the respective parties in IDC, Dippenaar J
(at paragraphs [15] to [19] of the judgment) held:
“[15] Whilst it is correct that each case must be determined on its own facts, the
distinctions sought to be drawn by the respondents are artificial. If the principles in
Potpale are considered in the context of Caxton and the other authorities, they apply
irrespective of whether the proceedings are instituted by way of action or motion. As
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made clear in Caxton, the delivery of a notice in terms of rule 35(12) or rule 35(14) does
not suspend the period referred to in rule 26 or any other rule.
[16] The launchi ng of a compelling application would not make any difference to the
above principle, save of course if an extension of time periods had been sought in that
application. No authority was advanced by the respondents in support of the proposition
that the lau nching of an application to compel does that which the notice under rule
35(14) could not achieve.
[17] The respondents further do not at present have a procedural right to the documents.
The fact that a compelling application was launched does not equate it to a right to the
documents………………………………………………………………………………………
……..
[18] Ultimately a party in the position of the respondents is left with a choice, either to
deliver its affidavit without the documents or to seek to extend the time periods for filing,
pending the finalisation of the application to compel. The respondents did not exercise
their remedies.
[19] In these circumstances it cannot be concluded that the enrolment of the application
was flawed or constituted an abuse. It follows that the r espondent is not entitled to the
punitive costs order sought against the applicant.” (Emphasis added).
[23] At the end of the day, Dippenaar J was not persuaded that, in the circumstances of that
matter, default judgment should be granted, as the Applicant urged the Court to do. The
court in IDC held that in light of the fact that the application was clearly opposed, it would
not be in the interests of justice to deprive the Respondents of an appropriate
opportunity to protect their interests and ex ercise the remedies at their disposal (at
paragraph [20] of the judgment).
[24] In Dippenaar J’s view the facts in IDC were analogous to a situation where a respondent
appears on the day of the hearing of a default judgment application and seeks an
opportunity to oppose and, in th at instance, the Respondents were seeking an
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indulgence. As such , it was held in IDC that it would be appropriate to direct the
Respondents to pay the wasted costs (at paragraph [21] of the judgment).
[25] In the premises, the court in IDC postponed the application sine die and ordered the
Respondents to pay the wasted costs (at paragraph [22]of the judgment).For all intents
and purposes the same order, having the same practical effect and based on virtually
identical facts to those in IDC, was made by this Court in the present matter. The only
difference was that, having postponed the application sine die, this Court ordered the
Respondent to file any answering affidavit within a specified time period. This order was
made with the intention of moving the matter forward in an orderly and/or correct,
manner.
[26] Finally, in the matter of Madzibadela v Standard Bank of South Africa Limited and
Another (1878/2022;1879/2022) [2023] ZAFSHC, a judgment delivered very recently
(22 February 2023) the court had occasion, when dealing with two rescission
applications in respect of default judgments where the Applicants had failed to file a
Plea, to hold (at paragraph [8] of the judgment), relying on Potpale, the following:
“The applicants further purport to show that they have a bona fide defence to the bank's
claims, and they contend that, were the court a quo privy to their defences raised in
their plea of 6 July 2022, the court would not have granted th e default judgements. In
this respect the applicants are overlooking the consequences of a notice of bar. In terms
of Rule 26 a party who fails to file a plea, for instance, within the period allowed, will be
ipso facto barred. The subsequent filing of not ices in terms of Rule 35(12) and (14) to
compel the delivery of documents, does not have the effect of suspending the operation
of the notice of bar. If a party under bar needs more time to access documents in order
to file a plea, as the applicants aver was the case here, that party may apply to court for
an extension of time to compel the delivery of documents and to file a plea. Needless
to say, in this case it was not done. The applicants were therefore not entitled to serve
their pleas on 6 July 2022, and it could not have any effect on the granting of the default
judgments.” (Emphasis added)
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Conclusion
[27] In light of the aforesaid principles of law and the application of those principles to the
common cause facts in the present matter, it is clear why this Court granted the order
that it did, namely , that the application be postponed sine die; the Respondent file its
answering affidavit, if any, within fifteen (15) days of the granting of the order on the 14th
of March 2024 and that the Respondent pay the costs occasioned by the postponement
on the 4th of March 2024.
[28] The argument s raised on behalf of the Respondent in support of the interlocutory
application that the matter should have been removed from the unopposed roll on the
4th of March 2024, namely, that the principles as enunciated in Potpale (and followed
thereafter in numerous decisions, as recently as September 2023) do not apply to
application proceedings and that the Respondent was not obliged to file an answering
affidavit in terms of the rules following the filing of its subrule 35(12) notic e, clearly fall
to be dismissed. It follows therefrom that the Applicant was entitled to set the application
down for hearing on this Court’s unopposed motion roll (which did not constitute an
irregular step as contemplated by rule 30A) and that the Respondent is not entitled to a
costs order in its favour (let alone a costs order on the punitive scale).
[29] As to allowing the Respondent to file an answering affidavit within a specified time, this
indulgence was granted by this Court (as in IDC) on the basis that the matter was clearly
opposed. It was therefore in the interests of justice that the Respondent be given an
opportunity to file its Answering Affidavit (which it nevertheless declined/failed to do ,
resulting in the Respondent being finally wound-up).
[30] This Court, in the exercise of its general discretion in respect of costs, ordered that the
Respondent pay the costs of the postponement of the matter on the 4 th of March 2024
(on a party and party scale). Such an order, made in the discretion of this Court
(exercised judicially) was on the basis that the Respondent was ultimately granted an
indulgence to file its Answering Affidavit. Furthermore, despite the Respondent having
had ample time to do so, it had failed to file an answering affidavit by the 4th of March
2024. In addition, the arguments raised by the Respondent as to why it was not obliged
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to file an answering affidavit had no basis whatsoever, either on the facts or in law, and
the Respondent had persisted therewith despite being faced with trite principles of law.
Also, the Respondent took no steps whatsoever to seek condonation for its failure to
file its Answering Affidavit timeously or seek an extension of the time limits to enable it
to do so. In the premises, it was clear that the Applicant should be awarded the costs
occasioned by the postponement on the 4th of March 2024, in order to, inter alia, partly
cure the prejudice it had suffered thereby.
[31] In light of this Court accepting that the filing of the Respondent’s rule 35(12) notice did
not suspend the time limits in relation to the filing by the Respondent of an answering
affidavit, it was obviously not necessary for this Court to consider the argument, put
forward by the Applicant, that the said notice did not comply with the provisions of the
relevant subrule and/or that the documents sought by the Respondent had either been
provided to the Applicant by the Respondent, alternatively, did not have to be provided,
on the basis that they were irrelevant (the principle of relevance having been dealt with
in several of the authorities as set out herein).
[32] These then are the reasons for this Court making the order that it did , under case
number 2023-070664, on the 14th of March 2024.
_______ __________
BC WANLESS
Judge of the High Court
Gauteng Division, Johannesburg
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Heard: 4 March 2024
Judgment: 14 March 2024
Written Reasons: 20 December 2024
Appearances
For Applicant: JG Dobie
Instructed by Reaan Swanepoel Incorporated
For Respondent: MD Kohn
Instructed by Debbie De Vries