REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A88/23
In the matter between:
In the matter between:
KAN JANI TRADING (PTY) LTD Appellant
and
THE MEMBER OF THE EXECUTIVE COUNCIL:
DEPARTMENT OF AGRICULTURE, RURAL
DEVELOPMENT LAND & ENVIROMENTAL AFFAIRS
(MPUMALANGA PROVINCE) Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Casel ines. The date and fo r hand -down is deemed to be 15 April 2025 .
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
________ _________________________
DATE SIGNATURE
Summary: An appeal against an order dismissing an action for want of diligen t
prosecution. Where the requirements of the dismissal of action are not met, a
Court of appeal is entitled to interfere with the exercise of a loose discretion. In
dismissing an action for want of prosecution, a court does not exercise a true
discretion. C onsidering and entertaining a settlement of an action is part and
parcel of litigation and the Rules purposively interpreted encourages that
entertainment and consideration. When such a process happens and other
litigation steps are put in abeyance, there is no room for allegations of delay in
prosecution, particularly where the other party is unable to demonstrate
serious prejudice. The Court below erred when it concluded that (a) there was
an inordinate delay occasioned in this litigation; (b) the demonst rated delay , if
any, was one that is inexcusable; and (c) that a serious prejudice was shown to
have been suffered by the other party.
The Rule 39(11) application, although granted, and the granting thereof had not
been challenged, was an unnecessary application, which put a spoke to the
litigation. A party may not be forced by a court to amend its pleadings. It
remains the wish of a party tha t can be exercised any time before judgment.
Failure to exercise a wish can never be considered as a delay since litigation
may still proceed with or without the amendment. The case of the appellant , as
pleaded is not a hopeless case. It remains the duty o f a court to make such a
determination after, in line with section 34 of the Constitution and the
application of the common law rule of audi alteram partem , hearing evidence
for and against. The appellant’s case is a simple one of payment for services
rend ered at the special instance and request of the respondent. On the fair
assessment of the pleadings, it is common cause that the appellant performed
the services and invoiced for that. The basis of refus al to pay is simple , and it
is that the appellant cha rged for services it was not actually contracted to
perform. Such becomes a triable issue to be resolved by evidence and not
pleadings. A party is not compelled to plead evidence ( facta probantia ) but
only facts ( facta probanda ).
Given the draconian nature of a dismissal of an action order, it must be
granted sparingly and only in exceptional circumstances and where the
interests of justice so command s. This Court is empowered by section 19 of
the Superior Courts Act to direct further litiga tion of the dispute. Held: (1) The
appeal is upheld and the order of the Court below is set aside and replaced
with an order dismissing the application to dismiss the action with an
appropriate order as to costs. Held: (2) The respondent to pay the costs o f the
appeal which includes the costs of employing two counsel, to be settled or
taxed at scale C. Held : (3) The parties are ordered to apply for judicial case
management.
JUDGMENT
CORAM MOSHOANA, J , RETIEF J and TEFFO J (concurring)
Introduction
[1] Litigatio n is a game in which the Court is umpire1. Like any other game, it ought
to be played in accordance with the rules of the game. Missive dialogue is not a
process contemplated in the rules of the game of litigatio n. The rules instead
contemplate the exchange of pleadings (formal court documents setting out
parties’ respective cases). The present litigation was , for a while , marred b y
ferocious missive dialogue, which can only suggest that parties busied
themselves with something not contemplated in the game of litigation. A
fervently held view by one party to the litigation, no matter how eloquently it is
displayed in a missive dialo gue, does not suggest correctness. In this game of
litigation, there is only one umpire, and that is the court.
[2] That said, this is an appeal that arrives at this Court with the leave of two
judges of the Supreme Court of Appeal after the Honourable Mr Jus tice
Sardiwal la refused leave to appeal. It is directed to, but, a , part of the litigation
1 Sir Frederick Pollock, a British jurist and a legal scholar 1845 -1937.
that these parties before us are subsumed into. The appeal is opposed by the
Member of the Executive Council: Department of Agriculture, Rural
Development, Land and Environmental Affairs, Mpumalanga Province ( “MEC ”).
Factual matrix appertaining the present appeal
[3] It must be pointed out upfront that the record of this appeal runs into some 459
pages contained in five volumes. In this Court’s view, the affidavits filed in
support of the application to dismiss were extremely prolix and verbose.2 For
instance, the founding affidavit, inclusive of the confirmatory affidavits
comprised of a solid 88 pages. The answering affidavit inclusive of annexures
thereto and confirmatory affidavits comprised of 51 pages. The replying affidavit
comprised of 29 pages. It suffices to mention , in passing , that motion
proceedings are not designed to deal with disputes of fact. Given the size of the
papers in the application to dismiss, a dispute of fact was bound, as it did, to
develop.
[4] Therefore, in this judgment , only the salient facts would be narrated. Kanjani
Trading (Pty) Ltd ( “Kanjani ”) was a service provider to the Department of
Agriculture, Rural Development, Land and Environmental Affairs, Mpumalanga
Province ( “DARDLEA ”). This , after Kanjani was awarded th ree contract s. The
dispute between Kanjani and the DARDLEA emerged in relation to two
contracts , in respect of Gert Sibande and Nkangala. Since the award, Kanjani
performed work and invoiced for payment in respect of the performed work. As
at the time of t he dispute, the DARDLEA had honoured invoices to the tune of
about R121 ,000,000.00 .
[5] Midstride the working relationship, the DARDLEA decided to stop honouring the
invoices for work performed by Kanjani. The basis for the refusal to honour the
invoices was that there appeared to be invoicing irregularities (constituted by
wrong hectares charged for, services not contracted for being charged for, and
wrong rates per hectares being charged for). The invoices which the DARDLEA
2 The poor trees died in vain.
refused to pay amounted to approxi mately R69 ,000,000.00 . A total of about 452
issued invoices, which of course evidence the work allegedly performed by
Kanjani, were disputed and not paid.
[6] Chagrined by the refusal to pay, on or about 5 August 2014, Kanjani instituted
an action against the MEC and demanded payment of an amount of R68,
767,767.24. The MEC entered an appearance to defend the action . Since
Kanjani held a view that the MEC is bereft of a bona fide defence and the
appearance to defend was entered solely for the purposes of delay, it applied,
in terms of the Rules of this Court, for a summary judgment. Of significance,
when the application for summary judgment was resisted, no mention was
made that t he case of Kanjani was hopeless. Instead, the Head of the
Department, in her capacity as an accounting officer , Ms Sindisiwe Prudence
Xulu, testified amongst others , as follows:
“The Department denies that the plaintiff is entitled to be paid any
amounts a s alleged in “A6”, and denies that the plaintiff has rendered
services which entitles it to invoice the Department as alleged in “A6”.
To the contrary, certain invoices were approved and paid by
Departmental officials, in the circumstances where no payment ought
to have been made. In certain instances, overpayments were made
and invoices were inflated. A proper forensic analysis which will be
undertaken in due course will reveal serious shortcomings in the
payment system which was implemented by Departmenta l officials and
lack of proper controls which unduly exposed the Department …
The Department’s contention is that the plaintiff has overcharged it.
The Department has requested the plaintiff to provide it with credible
supporting documentation in substantia tion of the invoices that it has
submitted which the Department disputes. The plaintiff has failed to
provide any credible supporting documentation. The Department is not
obliged to pay to the plaintiff invoices which are in dispute in respect of
which the re is no credible supporting documentation to it. ”
[7] At the time the summary judgment was resisted, the MEC was represented by
the State Attorney. For reasons that are not readily apparent from the papers,
the State Attorney withdrew as representatives of the respondent . Another set
of attorneys came on record for the MEC. Similarly, for reasons not readily
apparent, that set of attorneys withdrew as well . The present attorneys of
record entered the ongoing litigation space on or about 3 April 2017. For the
entire period spanning three years, pleadings were exchanged and various
interlocutory applications were launched. The first time that the action was
enrolled for trial was on 31 July 2017. I pause to mention that, at th at stage, the
parties had reached a litis contestatio (pleadings were closed).
[8] Three weeks before the appointed trial date, certain amendments were
proposed to the counter -claim ( the claim to set aside the contracts on the basis
of legality) launched by the MEC. Kanjani proposed a postponem ent of the trial .
This proposal was not met with the approval of the MEC. Such compelled
Kanjani to launch a substantive application for a postponement of the oncoming
trial. A few days before the commencement of the trial, the MEC relented, as
such, by agreement between the parties, the trial was postponed.
[9] A new trial date was applied for. A date of 11 -22 February 2019 was allocated
by the Deputy Judge President ( “DJP”) of this Court. Owing to the insufficiency
of the allocated da ys for the trial, the DJP was approached again in 2018.
Resultantly, the action was enrolled for a six week (11 May to 19 June 2020)
trial, which was set to commence on 11 May 2020. Parties were notified of this
date on 7 November 2018. Both parties prepared for the trial that was
upcoming for a period of about 19 months. On the version of the MEC, the trial
preparations continued from his side. I pause to mention that ironically, the
MEC was preparing to meet what would later be termed a hop eless case.
Howbeit, in late 2019 COVID -19 struck. On or about 26 March 2020, the
country was put on hard lockdown.
[10] On Kanjani’s version, the hard lockdown impeded its trial preparation and it was
unable to consult with its witnesses inter -provincially. Du e to this impediment,
Kanjani, toyed with an idea to apply for a postponement. Such an idea was
overtaken by an application “supposedly ” launched in terms of Rule 39(11) of
the Uniform Rules of this Court. The Rule 39(11) application was argued on 27
May 2 020. Ultimately, on or about 8 June 202 0, an order which was not
supported by any reasons was made by Sardiwalla J. The order was
substantial and it comprised of about 5 pages. It suffices, for the purposes of
this judgment , to extract a portion of that order, which the MEC argued that it
implied that Kanjani was compelled to amend before the action may proceed to
trial again. That portion read: -
“The plaintiff is precluded from leading evidence on any type of service
alleg edly rendered or any type of goods allegedly delivered or any rate
allegedly agreed upon, unless services and goods and rate have been
pleaded as constituting part of the first or second agreement.”
[11] I pause to mention that this order is consistent with the known and well
established principle of procedural law that a party is not entitled at a trial to
present an unpleaded case3. It was the granting of the Rule 39(11) application
that invited a barrage of missive dialogue. From 22 June 2020 up to an
includ ing April 2021, ferocious missive dialogue entered the litigation stage4. It
ought to be remembered that since the trial did not proceed from 11 May 2020,
procedurally, the next step would have been an application for a new trial date.
However, it must be mentioned that on or about 9 April 2020, Kanjani effected
an amendment to its particulars of claim which saw the quantum claimed being
reduced to R65,435, 454.26.
[12] In the ferocious missive dialogue what became apparent was that in the view of
the MEC, the Rule 39(11) order foreshadowed the need for various
amendment s to the particulars of claim. The MEC suggested that such
amendments be effected on or about 30 October 2020. Kanjani held a different
view and stated that the Rule 39(11) order did not affect a ll of its claims. This
3 DHB v CSB 2024 (8) BCLR 1080 (CC).
4 No less than 20 missives were exchanged since January 2020 up to and including May 2020. It
appeared that the atto rneys were now litigating through correspondence.
difference of opinion on the interpretation of the order continued for a while. At
some point, Kanjani toyed with the idea to amend its particulars , but apparently
settlement discussions were held, which prevented it from making any
amendments to its case. The existence of the alleged settlement discussions
was hotly contested by the MEC. Amongst the missives that were exchanged
laid a letter to the MEC , which was never responded to, which recorded
amongst others, the following:
“Your client being an organ of state which litigates with public funds and
which has a constitutional obligation to finalize disputes expeditiously,
as you record yourself, may want to reconsider the report issued as far
back as 14 April 2014 by …who recommend ed that your client pays the
amount in terms of the settlement signed by the MEC and which was
also recommended by your client’s Acting Chief Director …
Had the report been acted upon … your client would have saved
millions on interest and legal fees which would have been put to better
use in the service of the beneficiaries of the Department.
Our client is still willing to accept as basis for its settlement offer, the
amount agreed to between the parties on 28 January 2014, plus
interest thereon and a cont ribution to our client’s legal costs as set out
as follows …
We look forward to your client’s acceptance in compliance with its
constitutional obligation to finalize disputes expeditiously and cost
effectively. ”
[13] As mentioned, a dispute arose as to whether one Mr Xaba carried any mandate
to negotiate a settlement and that he misled Kanjani. However, for the purposes
of this judgment, it is obsolete to regurgitate the facts appertaining the dispute d
settlement allegations . However, it appear ed to have been Kanjani’s case that it
wished to give those settlement negotiations a chance before it took a further
step and which would result in the increase of litigation costs. For that, Kanjani
was accused of delaying the progress of the litigation and holdin g out for a
better settlement offer. What was upfront for the MEC was to see Kanjani
complying with the Rule 39(11) order and amend its particulars of claim.
Ironically, when in November of 2021, Kanjani sought to amend its particulars ,
the MEC objected. T hat forced Kanjani to launch a Rule 28(4) application on or
about 30 November 2021.
[14] Withal, on 6 April 2021, the MEC launched an application to dismiss the action.
It bares mentioning that as a parting shot, the missive of 2 October 2020 from
the MEC’s le gal team was that if the proposed amendments , the MEC awaited
the whole time for, does not arrive, the necessary steps would be taken to
bring this farcical litigation to an end as expeditiously as possible. I pause to
mention that it was, in my view, ina ppropriate for the MEC, through his legal
team to have labelled the litigation farcical. This Court is unable to observe
anything imbecilic or buffoonish about a litigation where payment for services
rendered piggy -backed by a legality review (counterclaim ) is concerned. That
notwithstanding, the application to dismiss the action was launched 10 month s
after the Rule 39(11) order. Kanjani contends that it was taken by surprise when
the application to dismiss was launched.
[15] The application to dismiss the action hearing proceeded on 1 December 2021
and an order , which was not accompanied by reasons, dismissing the action
was made on 2 December 2021. That dismissal, put a spoke on the
amendment application that was launched on 30 November 2021 . This ,
accordi ng to Kanjani. On 14 December 2021, Kanjani requested Sardiwalla J to
provide it with reasons for the order of 2 December 2021. Those reasons were
only availed in a written judgment dated 22 June 2022. Kanjani launched an
application for leave to appeal. O n 8 September 2022, an order was made
refusing leave to appeal. Kanjani petitioned the Supreme Court of Appeal for
leave to appeal. On 30 November 2022 , judges of appeal, Honourable Justices
Zondi JA and Salie -Hlophe AJA granted leave to appeal.
Applicabl e legal principles regarding a dismissal of an action
[16] With regard to the law applicable to delay in prosecution of a claim, Lord
Denning M.R. in Allen v Sir Alfred McAlpine and Sons5 had the following to say:
“The principle on which we go is clear, when d elay is prolonged and
inexcusable and is such as to do grave injustice to one side or the other,
or to both, the court may in its discretion dismiss the action straight away,
leaving the Plaintiff to his remedy against his own solicitor who has
brought him to this plight .”
[17] In Sanford v Haley6 Moosa J had the following to say:
“…It has an inherent jurisdiction to control its own proceedings and as
such has power to dismiss a summons or an action on account of the
delay or want of prosecution. The Court wi ll exercise such power
sparingly and only in exceptional circumstances because the dismissal
of an action seriously impacts on the constitutional and common -law
right of the plaintiff to have the dispute adjudicated in a court of law by
means of a fair tri al. The Court will exercise such power in
circumstances where there has been a clear abuse of the process of
Court .”
There are three requirements to be demonstrated , for an application to dismiss
an action to be granted , namely : (a) there must be a delay in the prosecution of
the case; (b) the delay must be inexcusable; and (c) there must be serious
prejudice to the defendant7. However, the veritable question is whether there is
behaviour which oversteps the threshold of legitim acy8. This Court is unable to
observe such a behaviour in this particular instance. It cannot be said that the
conduct of Kanjani was in any manner or shape egregious. On the conspectus
of the available evidence , in the view of this Court, the MEC and his legal team
employed tactics that derailed the present litigation and made it to be glacial.
5 [1968] 1 All E.R 543
6 2004 (3) SA 296 (C).
7 Cassimjee v Minister of Finance 2014 (3) SA 198 (SCA)
8 See Molala v Minister of Law and order and Another 1993 (1) SA 673 (W)
[18] Diplock LJ in McAlpine9 observed thus:
“It is then a Draconian order and will not be lightly made. It should not
in any event be exercised without giving the plaintiff an opportunity to
remedy his default, unless the court is satisfied either that the default
has been intentional and contumelious, or that the inexcusable delay
for which the plaintiff or his lawyers have been responsible has been
such as to give rise to a substantial risk that a fair trial of the issues in
the litigation will not be possible at the earliest date at which, as a
result of the delay, the action would come to trial if it were allowed to
continue…”
[19] Lord Atkin in Ras Behari and Others v The King Emperor10 aptly stated the
following: “Finality is a good thing, but justice is better” . Dismissing the action
even in the absence of grave injustice and serious prejudice will faithfully serve
finality but it shall not serve the interests of j ustice.
[20] In Autopax Passenger Services (Pty) Ltd v Transnet Bargaining Council and
Others11, the Labour Court , after placing reliance on the case of Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoer Kommisie en Andere12,
cited with approval13 what was said in Haley14. The Court of Appeal for British
Columbia, in Plaza 500 Hotels Ltd v SRC Engineering Consultants Ltd
(Plaza )15, felicitously stated the following, which this Court makes common
cause with: -
9 Supra fn 5
10 [1993] 102 LJ (PC).
11 [2007] 1 BLLR 39 (LC).
12 1986 (2) SA 57 (A).
13 See Van Niekerk v Shelfine 139 (Pty) Ltd (JR1477/11) dated 26 November 2014 as well as Lebelo
and 406 Others v City of Johannesburg (J2055/15) [2022] ZALCJHB 81 (22 March 2022 at paras [17] -
[18] where it was emphasised that grave injustice is the only factor which will propel a Court to
exercise its discretionary powers to dismiss a claim.
14 Supra fn 6.
15 2024 BCCA 288 (CanLII) at paras 17, 53, 58, 66, 71 .
“As to dismissal for want of prosecution, SRC referred to the test set out in
Wiegert v Rogers , 2019 BCCA 334…
The order sought by the defendants is not readily granted. Dismissal is a
“blunt tool” to be used sparingly” in response to procedural delay… The
remedy is a “draconian” one “only to be invoked in the most egregious of
cases” … It is to be avoided where it is reasonable to do so…
A dismissal order will not usually be granted on a first application for relief
arising from procedural delay , even intentional delay. Injustice migh t result
from such a course of action,
In Giacomini Consulting , a five -member division of this Court recently
revised the long -standing test for dismissal of an action for want of
prosecution described in Wiegert . That long -standing test required a judge
to be satisfied that there had been inordinate and inexcusable delay in the
prosecution of the action; the delay had caused, or was likely to cause a
serious prejudice to the defendant and it was in the interest of justice to
dismiss the action
In Kultak Financial Inc v Grewal 2018 BCCA 94, Justice Wilcock
emphasised that the goal of an application to dismiss for want of
prosecution is to secure the effective and efficient administration of justice .
Accordingly, it relates to the proceeding itself, not the underlying cause of
action. For that reason, he stated, it is an error to measure the period of
delay from the date the cause of action arose for purposes of determining
whether it is inordinate. ”
[21] Based on the authority of Plaza16, which this Cou rt does not hesitate to follow,
even if it emanates from a foreign jurisdiction, it states a law which is consistent
with section 34 of the Constitution of the Republic of South Africa , the dismissal
of an action must happen only if the interest of justice would be served thereby .
Section 39 (1)(c) of the Constitution provides that when interpreting the Bill of
Rights, a court may consider foreign law. Dismissal of an action is based on a
common law maxim of vigilantibus non dormientibus jura subveniunt (the law
assists those who are vigilant not those who sleep on their rights). Section
16 Ibid.
39(2) of the Constitution enjoins a court, when developing the common law , to
promote the spirit, purport and objects of the Bill of Rights. Section 34
guarantees everyone a right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before a Court. The common
law principle of audi alteram partem guarantees anyone before being
condemned , a hearing. Dismissal of an action before hea ring the merits of the
action is inconsistent with the audi alteram partem rule and section 34 of the
Constitution.
[22] This Court agrees with Plaza17 when it said: -
“Under this framework of analysis, the prejudice to the defendant’s ability
to defend the action remains a relevant, and indeed important
consideration. However, prejudice to the defendant is not a pre -requisite
to an order dismissing a claim for want of p rosecution. At the interest of
justice stage, the court should look to all relevant circumstances rather
than prioritizing the impact of delay on trial fairness .”
[23] Consideration of the interests of justice element entails consideration of (a) the
prejudice the defendant will suffer defending the case at trial; (b) the length of
the delay; (c) the stage of the litigation; (d) the impact of the delay on the
defendant’s professional, business or personal interests; (e) the context in
which the delay occurred, in particular whether the plaintiff delayed in the face
of pressure by the defendant to proceed; (f) the reasons offered for the delay;
(g) the role of counsel in causing the delay; and (h ) the public interest in having
cases that are of genuine public imp ortance heard on their merits18. In my view,
regard being had to any of the above consider ations, the interests of justice did
not comm and for a Draconian order of dismissal of Kanjani ’s claim, which
undoubtedly had reached a trial stage.
Judgment of the Court below
17 Ibid fn 13, at para 72
18 See International Capital Corporation v Robinson Twigg & Ketilson 2010 SKCA 48 at para 45.
[24] It must be stated that from paragraph s 17-19 of the judgment the erudite
Sardiwalla J, admirably and with adequate sagacity and perspicacity delineated
the legal principles applicable to a dismissal of an action for want of
prosecution. However, in this court’s view, the learned Judge does not make a
definitive finding as to what the delay period is , in this litigation. The first
question to be addressed in an application for dismissal for want of prosecution
is whether there has been an inordinate delay or not. In Sternberg & another v
Hammond & anothe r19, it was confirmed that in order for an application of that
nature to succeed, the defendant must show that there is an inordinate delay.
Most significantly, the Court remarked that it should not be too difficult to
recognise inordinate delay w hen it occurs. In Wiegert v Rogers20, the Court
stated that inordinate delay is delay that is immoderate, uncontrolled, and
excessive and out of proportion to matters in question.
[25] Regard being had to the finding set out below , this Court must assume that t he
contended inordinate delay period , is that of eleven months:
[21] … However, to the contrary the Respondent despite the order of 8
June 2021 blatantly disregarded this Court’s directives when called
upon for eleven months and did not provide any explan ation as to its
inability to meet the timeframes set for the filing of the amendments by
the Applicant…”
[26] As indicated above, it remained the duty of the MEC to show that there is an
inordinate delay. In motion proceedings, a party makes its case in the fou nding
affidavit. Having scoured through the founding affidavit deposed to by Mr Zola
Majavu, the MEC’s attorney of record, this Court was unable to emerge with
any mention of eleven months being alleged as an inordinate delay.
Paradoxically , before us , counsel for the MEC , submitted that the inordinate
19 [1968] 1 All ER 543 (CA)
20 2019 BCCA 334 .
delay was for 19 months. Regretfully , this submission is n ot bolstered up by the
founding papers. Unpleas antly, the Court below does not make mention of it .
[27] In Director of Hospital Services v Mistry21, the Court, stated the law as follows:
“When, as in this case, the proceedings are launched by way of notice
of motion, it is to the founding affidavit which a Judge will look to
determine what the complaint is … and as been said in many other
cases … an applicant must stand or fall by his petition and the facts
alleged therein and that although sometimes it is permissible to
supplement allegations contained in the petition, still the main
foundation of the application is the allegation of facts stated
therein, because those are the facts which the respondent is
called upon either to affirm or deny .” [Own emphasis]
[28] In Minister of Safety and Security v Slabbert22, the learned Mhlantha JA, as she
then was, aptly stated the following:
“The purpose of pleadings is to define the issues for the other part y
and the court . A party has a duty to allege in the pleadings the
material facts upon which it relies. It is impermissible for a plaintiff to
plead a particular case and seek to establish a different case at tria l. It
is equally not permissible for a trial court to have recourse to
issues falling outside the pleadings when deciding the case .”
[Own emphasis]
[29] What this Court could observe from the founding affidavit, under the heading
“The delays are highly prejudic ial” at paragraph 84 , Mr Majavu stated the
following:
21 1979 (1) SA 626 (A) at 635H -636B
22 [2010] 2 All SA 474 (SCA) at para 11.
“I have already made the point that Kanjani’s cause of action in relation to
its claims in Gert Sibanda arose 9 to 10 years ago, and in Nkangala it was
8 to 10 years ago. ”
[30] This allegation seems to make a case of a delay of about 10 years. Of course ,
this cannot be correct. A delay cannot be reckoned from the date of the cause
of action. Nevertheless, Mr Majavu, stated , amongst others, as follows:
“4.32 Sardiwalla J’s order c learly contemplated that Kanjani must
amend its pleadings before the matter can proceed to trial again ;
4.33 Although almost a year has passed since Sardiwalla J made his
order , Kanjani has still not amended (despite me writing to Mr Van
Strijp on three se parate occasions over the past year practically
begging him to finalise Kanjani’s particulars of claim );
4.34 Kanjani continues to refuse to amend its patently deficient
pleadings , in fact it refuses to do anything at all to advance the
litigation…
4.35 It has become abundantly clear that Kanjani simply cannot
advance the litigation. But even if I am wrong on this , it is clear that
Kanjani has no interest in advancing the litigation;
4.36 Kanjani is quite obviously holding out for a better settlement
offer.”
[31] What this Court can decipher from the above allegations, is that, the supposed
inordinate delay was firstly caused by the refusal to amend the particulars of
claim, since in Mr Majavu’s interpretation of the court order of 8 June 2020,
Kanjani wa s ordered to amend . That delay, occasioned by the failure to amend,
continued for a period of a year. Resultantly, his conclusion, which he
acknowledged may be wrong, was that : (a) Kanjani simply cannot advance the
litigation (obviously by succumbing to hi s ebulliently held view that Kanjani was
ordered to amend before the matter can proceed to trial again); and (b) Kanjani
had no interest in advancing, by complying with the order to amend, the
particu lars of claim.
[32] It bears m entioning that a pleading must only contain the material facts and not
evidence . Evidence is a matter for tria l, where the pleaded material facts are
substantiated . For example in an action for payment of money for services
rendered at a special instance and req uest, a party is compelled to plead that
services were rendered, but never how the services were rendered. Such is a
matter for evidence and not pleadings. It is only in motion proceedings that a
party is p ermitted to plead and give evidence sym biotically, but never in act ion
proceedings. Pleadings define issues and not evidence . Hence a party is not
permitted to lead evidence on an unpleaded issue . To the extent that Kanjani
was expected to plead evidence , such an expectation or compulsion for that
matter is not lawful and deserves to be rebuffed or ignored. Put differently ,
evidentiary issues are triable while material facts are pleadable.
[33] Although it can be said that the learned Judge was not far off the mark, when
he stated 11 months as opposed to a year, the veritable q uestion is , where in
the pleadings the MEC alleged that there was an inordinate delay of 11 months.
Clearly, nowhere. Better still, other than mentioning the 11 months, the learned
Judge did not find that the 11 months’ delay is inordinate in the sense of it being
immoderate, uncontrolled and excessive and out of proportion to the matter in
question. This Court is acutely aware that the parties had waited for a period of
about three years for a trial date to be allocated. The question then becomes , if
waiting for 11 months’ amounts to an inordinate delay, why the waiting for three
years was not considered an inordinate delay.
[34] This Court agrees with a submission by counsel for the appellant that the 10
months’ period, being reckoned from the date of the Rule 39(11) order to the
date when the application to dismiss was launch ed, does not amount to an
inordinate delay . In the absence of inordinate delay being shown, cadit quaesto .
The application for dismissal could not move out of the starting block s and
ought to have been dismissed outright.
[35] With considerable regret, it is noted by this Court , that the learned Judge also
suggested in his judgment that Kanjani was ordered to amend its particulars of
claim. Regre ttably, such is not apparent from the te xt of the order of 8 June
2020. The SCA in Martrade Shipping and Transport GmbH v United Enterprise
Corporation and MV Unity23, stated, after affirming what Trollip JA observed in
Firestone South Africa (Pty) Ltd v Gentiruco AG24, the following , with regar d to
the interpretation of a Court order: -
“The starting point … is to determine the manifest purpose of the order.
This was endorsed by the Constitutional Court … This Court in Natal
Joint Municipal Pension Fund v Endumeni Municipality , described the
process of interpretation as involving a unitary exercise where, in the
face of ambiguity, a sensible interpretation is to be preferred to one
which undermines the purpose of the document or order.”
[36] Regard being had to the purpose of Rule 39(11), which shall be discussed later
in this judgment, it is perspicuous that the purpose of the order made in terms
of it is to deal with issues of where the onus should lie. The order correctly
stated a party is not allowed to advance an unpleaded case. Such an order
speaks to the issue of an instance of onus contemplated in Rule 39(11). It is not
sensible to interpret paragraph 1.4 of the order to mean that Kanjani was
compelled to amend. Such an interpretation is at odds with Rule 28 of the
Unifor m Rules. In terms of Rule 28(1) it takes a desire of a party to amend a
pleading. A desire is a strong feeling of wanting to have something or wishing
for something to happen. It is incongruent with the literal meaning of the word
desire for a Court of law to compel a party to have a wish to amend. The rule
outlines the procedure to adopt once a desire to amend is made. In that part of
the litigation game, pertaining to the amendment of pleadings, a Court only
enters the fray as an umpire if there is an obj ection to the desired amendment.
Until then, the rules of the litigation game do not allow a Court to play any role.
What will ignite the involvement of a court is a Rule 28(4) application. Rule
39(11) is not designed to deal with pre -trial stage issues af ter pleadings are
considered to be closed within the contemplation of Rule 29.
23 [2020] ZASCA 120 at para 3.
24 1977 (4) SA 298 ( A) at 304.
[37] It appears to be the case that the MEC conflated the purpose of Rule 39(11)
with the situations catered for in Rules 21 and 2 3 of the Uniform Rules. It was
contended by the MEC that the Rules 21 and 23 process es were swallowed by
the Rule 39(11) application. It cannot be. For instance, Rule 21(2) lucidly
provides that after the close of pleadings any party may deliver a notice
requesting only such further particulars as are stric tly necessary to enable him
to prepare for trial. It must be stated that the str ictures of the Rule cannot be by -
passed through a bastardized Rule 39(11) application. If the requested
particulars are not strictly necessary to enable preparation, such parti culars
may not be requested. Rule 21(4) provides a remedy for failure to deliver the
strictly necessary particulars. An application for (a) order for the delivery; (b)
dismissal of the action or striking of the defence; or (c) an order a Court deems
meet, may be made.
[38] Rule 23 provides a remedy for taking an exception, which if upheld will for
instance obliterate particulars that do not disclose a cause of action. Again , it
bears mentioning that a bastardized Rule 39(11 ) application cannot be used to
achiev e an exception.
[39] It must be remembered that the right to amend is available to a party right up to
before judgment. Rule 28(10) specifically provides that at any stage before
judgment, a Court may grant leave to amend any pleading25. Accordingly, it
cannot be correct , as ardently submitted, that Kanjani had lost its right to
amend, nor can it be said that its failure to make a desire to amend constitutes
an inordinate delay. The trial could have, as it did in the previous occasion ,
been enrolled without any amendment being desired or made. Rule 29(2)(b) of
the Uniform Rules contemplates that any party may apply for a trial date. As
such, once the overt manifestation to desire an amendment does not
materialise, the MEC could have applie d for a trial date. This step could have
saved the MEC from the misery of surmising whether Kanjani has or has not
25 See for general discussion of the principles JMS v MMAN in re MMAN v JMS (40230/2020)
Gauteng Division, Pretoria High Court dated 21 June 2023, per Retief J.
lost interest. Particularly in a situation where its counterclaim also requires
determination.
[40] Accordingly, the conclusion this Court had reache d is that the learned Judge
erred when he found that Kanjani was compelled to amend. Ordinarily, where a
Court upholds an exception, it will only afford a party an opportunity to amend
so as to regularise an offending pleading . There is no way that a C ourt would
compel a party to amend. Any order to that effect will definitely be a nullity since
it offends the principle of legality. A Court does not have such powers to compel
a party to amend. Additionally, to the extent that the learned Judge impliedly
found that the period of not desiring to amend amounts to an inordinate delay,
the Judge misdirected himself in that regard.
[41] Since this Court finds that there was no inordinate delay demonstrated, it is
obsolete to deal with what the learned Judge refer s to as an inexcusable
explanation. There was simply nothing to be explained and or excused. This
Court shall in due course discuss the issue of settlement negotiations used to
explain the delay of 10 months. For now, this Court takes a firm view that a
delay of 10 months can never be considered inordinate in the context of this
case. An incorrect impression was created by Mr Majavu that there was
possibly a delay of ten years. A comment in passing is not altogether out of
place. In all the interlocutory applications , (Rule 39(11) and the application to
dismiss the action) , Mr Majavu is the main deponent . Of course, there is
nothing wrong , if Mr Majavu had knowledge of all the facts he deposed to . As
confirmed in Ganes and another v Tele com Namibia Ltd26, he requires no
authority to testify. It is just peculiar , if consideration is given to the fact that he
joined the litigation only in 2017.
[42] Turning to the most significant requirement of serious prejudice . In this Court’s
view, counsel f or the appellant is correct when he submits that the MEC has
failed to demonstrate serious prejudice. At paragraph 20 of the judgment, the
learned judge correctly held that the onus of proving what he termed real
26 2004 (3) SA 615 (SCA).
prejudice, which is no different from serio us prejudice, remains with the
defendant. Howbeit, such prejudice must be pleaded by the applicant for a
dismissal of an action . The MEC pleaded prejudice in the following manner: -
“4.37 This “never ending” litigation is causing serious prejudice to the
Department caused by it having to carry a contingent liability of approx.
R140 million in its books (a capital of approx. R65 million and in
duplum interest of another R65 million and costs estimated at approx.
R10 million)
[43] Additio nally, the MEC pleaded th e following :
“Summary of the prejudice cause d by the delays
90. Kanjani is plainly dragging its heels.
91. The undue delays animating the manner in which Kanjani is
conducting the prosecution of this case has resulted in serious
prejudice of the type characterised in this affidavit by me as
“evidentiary prejudice ”, but there is also the prejudice associated
with having to carry liability in accounting records, to which I
have made reference in the attached correspondence.
92. If the litigation is allowed to continue, the prejudice will increase
as the matter drags on. At this stage there is no end in sight.
93. Moreover, sound policy reasons exist to justify the court bringing
this litigation to an end by dismissing Kanjani ’s action.”
[44] In the founding affidavit, the so -called evidentiary prejudice was stated by way
of examples and not fact, and was stated as , memories of witnesses fading;
evidence becoming stale and sometimes lost; and the inability to prove
allegations. Spec ulative evidence of staff turnover and the death of a staff
member was also mentioned. The difficulty with this evidence is that the
deponent does not state when this “highly prejudicial” situation set in. Ironically,
for the trial of 11 May 2020, the MEC and the department’s legal team prepared
in earnest for the upcoming trial; attempted to obtain agreement on some of the
“big issues”; limit the areas of dispute; and various procedural aspects as to
who bears the onus of proof and the sequence of how evid ence in the trial
would be produced. The department’s preparation for trial was extensive. As a
sign of how ready the MEC was for trial, he opposed a request for
postponement to a point of compelling Kanjani to launch a substantive
application for postpone ment. Days leading to the trial commencement, the
MEC did not behave like a litigant who was highly prejudiced by any delays. In
the Court’s view, this alleged evidentiary prejudice is nothing but a fa cade, and
an afterthought which was aimed at oomphing the application to dismiss. The
question remains, why not bring the application to dismiss before 11 May 2020
and only lurk Kanjani by launching a Rule 39(11) application. This Court is far
from being convinced about the bona fides of the MEC in launching the
application to dis miss the action. This will be illuminated when the ne cessity of
the R ule 39(11) application is considered later in this judgment .
[45] The biggest issue for the MEC in the litigation was to have the action of
Kanjani, in a rather truncated manner, dismissed because it is a hopeless one
in the MEC’s ebulliently held view. Unfortunately, for the MEC, it is a Court, as
an umpire , that must make that call, after affording litigants an audi alteram
partem . The issue that Kanjani h ad a hopeless case, was, as it did , bound to
create a genuine dispute of fact, which is incapable of being resolved on the
affidavits. Despite, it being pertinently raised by Kanjani, the learned judge did
not invoke the provisions of Rule 6(5)(g) of t he U niform Rules. Neither did the
learned Judge resort to the Plascon -Evans Paints (TVL) Ltd v Van Riebeck
Paints (Pty) Ltd27 rule to justify the order granted in the midst of genuine
dispute of facts.
[46] Howbeit, regrettably, nowhere in the judgment , is it appar ent that the learned
Judge dealt with the alleged highly prejudicial situation. It is unclear as to why
that was the case. Instead, the judgment only reflects the following at
paragraph 25 , which regrettably does not deal with the pleaded case: -
27 1984 (3) SA 620 (A).
“… In my view the Respondent should have recognized what was at
stake when the order of 8 June 2021 was granted and that there was
real prejudice to the Applicant by refusing to agree on a date for the
amended particulars of claim to be submitted. This is undisputed as the
Applicant could adequately prepare its defence and not informing the
Applicant of the alleged settlement talks and allowing it to proceed to
believe that it would file an amended particulars of claim at some
stage, while and hold ing the Applicant to its bargaining with the
Respondent, which the Respondent cannot approve (prove) with
confirmatory affidavits or any documentary evidence of its existence is
inexcusable. Fairness dictates that the Respondent should not have
been allowe d to take advantage of the situation. ”
[47] With considerable regret, the above finding stands paradoxical to the pleaded
prejudice. It is clear that what the learned judge considered to be real prejudice
is the refusal to agree on a date for the amend ment of the particulars of claim.
In this Court’s view, such is far from being considered a serious prejudice. As
already held by this Court , the trial could have proceeded without the
amendments and the order of 8 June 2020 , did not on any benign interpretation
compel Kanjani to amend its particulars of claim. Madam Justice Dickson
confirmed in Wiegert28 that the prejudice , contemplated in an application to
dismiss an action , is one concerned with the prejudice a defendant will suffer in
mounting and presenting a defence if the matter goes to trial. Such a prejudice
is perspicuously absent in this matter. It is indeed so , that in an instance where
an inordinate and inexcusable delay is established, a rebuttable prejudice is
presumed.29 In this matter no inordinate and an inexcusable delay was
demonstrated. As held in McAlpine30, a grave injustice must be established. No
such grave injustice has been demonstrated on the facts of this case. Regard
being had to the issues in this matter, this is likely to be a paper trial. For
instance, if it can be shown on an invoice that a wrong rate has been used; a
2828 Supra fn 20.
29 Busse v Chertkow 1999 BCCA 313.
30 Supra fn 5.
wrong hectare has been used; a service not contracted for has been charged
for, Kanjani is bound to fail. Interpretation of contracts is a matter of law as
oppos ed to evidence . On application of the parol evidence rule, the views of
parties prior t o the conclusion of a written agreement , may not be admissible.
On any interpretation of a document, a Court is bound to consider symbiotically,
the text, context and pu rpose31.
[48] The Court in Lebelo and 406 others v City of Johannesburg32 had the following
to say: -
“[20] The two claims presented by Lebelo and others are to a large
degree predicated on the terms of a collective agreement. It is
apparent that this will be a paper trial as opposed to strictly viva voce
evidence, in relation to the non -payment of the bonus, the COJ relies
on the provisions of the collective agreement to justify the non -payment
of the bonus. Similarly, in relation to the wage increment claim, t he COJ
relies on the provisions of the ‘sunset clause’ in the collective
agreement. Regard being had to the above, it is difficult to observe any
serious prejudice, which the interests of justice would propel this Court
to a draconian exercise of discretio n.”
[49] Since no serious prejudice was demonstrated, the learned judge erred in
dismissing the action, which is simply one of services rendered at the special
instance and request of the MEC. On a fair assessment of the pleadings, the
parties seem to have enl arged the dispute unnecessarily. Involved herein is not
necessarily a breach of contract claim. The two pleaded contracts have been
admitted. Both parties quibble about the interpretation of clauses 7 and 8 of the
agreements. This is nothing the rules of interpretation cannot resolve. Unless
fee farming is the propelling force, there seem to be no logical basis for weeks
31 See University of Johannesburg v Auckland Park Theological Seminary and Another 2021 (8)
BCLR 607 (CC).
32 (J2055/14) [2022] ZALCJHB 81 at para 20.
of trial. Nevertheless, these are issues that may arrest the attention of the trial
Court in due course.
Was a rule 39(11) application necessary or not?
[50] Although a determination on this issue may not necessarily affect the upholding
or dismissal of this appeal, since it was raised and argued, it is incumbent for
this Court to deal with it. It becomes particularly important because counsel for
the respondent audaciously submitted that the action was partly -heard before
Sardiwalla J. It was actually not partly -heard.
[51] In considering this question, the best place to start is the text of the rule and
where it is located in the Rules. The MEC had taken a wrong view that that
which could not be done under Rules 21 and 23 could be done under this Rule.
This Court disagree s with that view . The rule reads as follows:
“ 39(11) Either party may apply at the opening of the trial for a ruling by
the court upon the onus of adducing evidence , and the co urt after hearing
argument, may give a ruling as to the party upon whom such onus lies :
Provided that such ruling may thereafter be altered to prevent injustice."
[52] As a departure point, this Rule is located in the place where trial procedures are
regulated . Such must imply that its invocation is suitable at the stage where
pleadings are closed within the contemplation of Rule 29. It could not have
been the intention of the drafters of the Rule that re -opening of the closed
pleadings must happen at this stage. The Rule is specific as to upon what it
must apply. The ruling to be made is also confined to what it must apply to. This
is the rule of onus and nothing else. It cannot be bastardized to rule on issues
outside the onus issue. This Court is acutely aware that the order made in
terms of this Rule is not under appeal. This Court will depart from the premise
that Kanjani harbours no intentions to impugn the order.
[53] This Rule was interpreted by Cla assen J and this Court agrees with that
interpretation in Intramed (Pty) Ltd v Standard Bank of South Africa Ltd33.
Claassen J acknowledged that interpretation of the Rule was res nova at that
time and in order to decide whether the ruling sought before him was
competent. In doing so, he said:
“Upon mere reading of Rule 39(11) it seems abundantly clear to me that
the term ‘ onus of adducing evidence’ has two meanings. It refers firstly to
the duty to commence leading of evidence but secondly to the incidence
of onus. This construction of the subrule follows logically from the proviso
to the subrule….In my view, the express inclusion of the proviso in subrule
(11), indicates that the L egislature intended to opt for a more liberal
approach, such as that adopted by the Cape Provincial Courts, i.e. to
allow a Court to rule at the commencement of the trial on both the duty to
begin as well as the initial onus of proof on the various issues which might
arise from the pleadings as they stand at that point …Thus the sequence
in which evidence is called is expressly linked to the onus of proof derived
from the pleaded issues.
In my view it makes good sense that the onus of adducing evidence
should also include a ruling regarding the incidence of the burden of proof.
Trials such as this where enormous amounts of money are at stake, are
not regarded as a tactical game. In my view it would be in the interest of
justice that a litigant should be entitled to apply for a ruling pursuant to the
express provisions of Rule 39(11) regarding both the order in which
evidence is to be adduced as well as a provisional ruling regarding the
onus of proof on various issues …
It is now necessary for me to analyse the pleadings in order to establish
the duty to begin leading of evidence as determined by the incidence of
the onus of proof .”
[54] It is beyond perspicuous that the Rule is there to deal on ly with (a) duty to begin
and (b) the incidence of onus as guided by the pleadings as they stand at that
33 2004 (6) 252 (W)
time34. Conspicuously absent from the text of this Rule is a possible order for a
party to amend its pleaded case. A typical order that should arise fr om the
application of this Rule is one along the following lines. The p laintiff has a duty
to begin and the onus to prove this and that issue. To my mind the rule does not
contemplate a sub stantive formal application, as it was, for some inexplicable
reaso ns, done in this case. The Rule contemplates an informal request for a
ruling intra trial proceedings , hence provision for an alteration of a ruling shoul d
the interests of justice demand . To my mind , the bringing of a formal and
substantive application in this lis was like killing an ant with a sledge hammer.
[55] Turning to the question raised and debated. Did, leading to the trial, based on
the pleadings as they stood at that time , parties quibble d about the duty to
begin and the onus issue? On the facts of this case there was no quibble that
Kanjani attracted the duty to begin and the onus of proof on its pleaded case.
The pleadings remained practically the same even at the first trial in 2017. The
question must be, why was the Rule 39(11) appl ication not necessary at that
time? The MEC was ready to proceed to trial, with the same pleaded case.
When summary judgment was resisted by the MEC , phrases like ‘patently
deficient pleadings’; ‘hopeless case’ ; and ‘never be able to plead a proper
cause o f action to legitimise the 452 invoices’ , had ostensibly not yet reached
the vocabulary of the MEC. More importantly, the HOD stated in no uncertain
terms that it has a bona fide defence. A bona fide defence can only be mounted
against a claim in law. No s uggestion was made by the HOD that the combined
summons was excipiable on any basis. A hopeless case does not call for a
demonstration of a bona fide defence. Simply put, the hopeles s case narrative
is, in this Court’s fervently but respect fully held view, an afterthought and a
product of legal machinations. The case of Kanjani is not hopeless and never
was. Reaching such a conclusion without hearing evidence is not only a
dangerous tactical manoeuvre but a reckless conclus ion.
[56] It seems qui te obvious that the Rule 39(11) application was truly not necessary.
It is beyond doubt that its launching put a spoke on a potential six weeks trial.
34 See Merryweather v Scholtz and another 2020 (3 ) SA 230 (WCC) at 255 G -H
In order to observe the reason why it was launched, one needs to look no
further than the missive dialogu e. Before the relevant excerpts of the missive
dialogue are set out, it is important to make reference to the formal court
documents. In preparation of the July 2017 trial, a revised special trial note was
filed which recorded the following important aspec t, which relates to Rule
39(11):
“Disputed facts in respect of first claim
7.2 On which party the duty rests to demonstrate that the work
detailed in the invoices was performed or not, inclusive of the extent of
the hectares referred to in the invoices. ”
[57] In preparation of the 11 May 2020 trial, another note was prepared by the
MEC’s legal team on or about 11 March 2020. That note recorded, amongst
other things, the following relevant aspects: -
“Main issues between the parties
18 What is the contract?
18.1 The plaintiff bears the onus .
19 What work had to be done under the contract?
19.1 The plaintiff bears the onus
19.2 The plaintiff will need to establish that it actually did the work
that it invoiced for and that such work was done in accordance
with the contract.”
[58] Regard being had to the above, the issue of onus, which encapsulates the duty
to begin contemplated in Rule 39(11), would have bee n resolved and an
application for a ruling was obviated thereby. However, in the self -same note,
the following intimation was made: -
“Interlocutory application if any
21 There are no interlocutory applications at this stage. To this we add
only that for approximately 5 years since the summons was f irst served,
the defendant has been telling the plaintiff that its invoices are incorrect
inter alia because they do not conform to the tariff in the contract. The
plaintiff has steadfastly denied it and refused to revisit its invoices. Then,
as the attach ed letters make plain, three months before the trial the
plaintiff conceded that its invoices are incorrect in as much as they do not
conform to the tariff. Now, with only two months to go to the trial, we see
no application from the plaintiff to amend its self-confessed incorrect claim
based on incorrect invoices. This , despite its stated intention to do so. We
raise this point because, without an amendment, we simply cannot
understand how the trial can proceed. However, we do not know whether
or when the plaintiff will eventually bring this much needed amendment
and how the trial will be affected by it .”
[59] It is crystal clear that the MEC held a view that the invoices were incorrect. The
MEC also held a view that the only permissible manner to resolve that
conundrum is to effect an amendment. In its ebulliently held view, a trial was
incapable of proceeding without an amendment being effected. Just to digress
a bit, procedurally, if a party holds a view that a pleading is vague and
embarrassing or does not di sclose a cause of action, a Rule 23 procedure
beco mes available for use. Should the other party accept the alleged deficiency
in an impugned pleading , it may resort to a Rule 28 procedure to regularise the
offending pleading. With considerable regret, I find myself being unable to
share the ebulliently held view that a continuation of a trial would be
handicapped in any manner whatsoever.
[60] That said, I now turn to the missive dialogue. On 28 January 2020, a letter was
directed to Kanjani’s legal team. Pertinently, a view was expressed that Kanjani
relies on invoices where it claims for items that are seemingly not covered by
the agreements pleaded by it. Owing to that view, Kanjani was asked how it
plans to prove the invoices. Regard being had to the view held and the
question raised, the MEC took a view that the trial should be removed from the
roll to enable Kanjani to deal with the view and the question, which the MEC
labelled “shortcomings ”.
[61] On 30 January 2020, Kanjani’s legal team responded to the view and the
question posed. Of significance, the following was recorded:
“14.1 We hold the view that the matter should proceed since it is ripe
for trial.
14.2 We do not view any of the alleged sh ortcomings raised in your
letter to exist or to justify the removal of the matter from the roll.
14.3 There is no obligation on our client to indicate how it intends
utilising the allotted court time or which witnesses it intends
calling. At this stage a ll issues that are in dispute on the
pleadings will unfortunately have to proceed to trial. Our client is
again under no obligation to explain why all these issues should
proceed to trial…”35
[62] In the correspondence of 14 April 2020, the legal team of the ME C pinned their
colours to the mast in so far as the necessity of the Rule 39(11) application is
concerned . The following was stated:
“4 … We believe this is an important issue that the parties should resolve,
if possible, before the trial commences . If th e plaintiff is not at first to deal
with why the invoices are correct and why the defendant should pay
same, when will it do so?
5 The problem is compounded by your refusal to explain how you intend
to prove the invoices, the sequence of and which witnesse s you will call,
as well as the topics of their evidence. This is recorded in your letter of 30
January 2020. We need this information to prepare. If we cannot
immediately commence with cross -examination, the matter might have to
stand down. Furthermore, w e want our forensic auditor to be in court
when witnesses testify about the invoices, so that he can provide us with
his input. We request that you reconsider your stance in this regard .”
35 It must be mentioned these views are pitch -perfectly correct. Pleadings define the issues for the
parties and for the Court.
[63] On 16 April 2020, the legal team of Kanjani responded. The following , which is
apt in my view, was stated: -
“7 Furthermore, the request in paragraph 5 of your letter is quite
remarkable, for the following reasons :
7.1 As you should no doubt be aware, your client is not entitled to
the information, be it for preparation or otherwise;
7.2 Our client’s stance in this regard has been clear throughout and
our client is in any event entitled to conduct the trial in the manner it
wishes to do. Your client is not entitled beforehand to be availed of
each and every step our cli ent intends taking nor the witnesses it
intends calling . “
[64] It was shortly after the above response that the MEC launched the rule 39(11)
application on 25 April 202 0. For reasons outlined above, this Court takes a firm
view that the rule 39(11) was unneces sary and it was used to effectively harass
Kanjani , since it did not share the views expressed by the MEC and refused to
reconsider its stance . The issue of onus , both as who bears the onus and as to
who is to begin, was long resolved , at the time when the application was
launched . It is also apparent to this Court that the MEC was attempting to
strong -arm Kanjani into an amendmen t. This Court has already indicated that
an amendment is something a party may not be forced to do. In a litigation
game, the vie ws of the one party , eloquently or ineloquently expressed, do not
constitute the gospel truth. The final arbiter is the Court of law. Section 165 of
the Constitution makes it plain, the judicial authority lies with the Courts. A
Court of law exercises th at judicial authority with due regard t o section 34 of the
Constitution.
Did Sardiwalla J exercise a true discretion when he dismissed the action?
[65] Counsel for the MEC passionately argued before us that when the action was
dismissed, the Court below exercised a true discretion, as such the interference
on appeal is limited. With considerable regret, this Court disagrees with that
argument. In a true d iscretion situation, any one of a number of permissible
courses is open to the lower Court. In Government Printing Works v Public
Service Association and another (Government Printing )36, the learned
Govindjee AJA, writing for the majority, with sufficient perspicacity stated the
law as follows:
“… Firstly, a discretion in the ‘true’ sense is such that any one of a
number of equally permissible courses is open to the lower court. That
court makes an election, for an example in respect of whether to grant
a postponement or costs, and whichever option is selected is entirely
permissible and can never be said to be wrong . Secondly, a ‘ loose ’
discretion, for an example whether or not to grant an interim interdict,
does not necessarily involve a choice between equ ally permissible
options. The court is simply at liberty to have regard to a number of
‘disparate and incommensurable features ’ in coming to its decision.
… Where the lower court’s discretion is ‘ loose ’, interference is
permissible on a broader basis, when ever the appellate court decides
its own outcome is more appropriate based on the various factors it
has considered. This is typically because the appellate court is in
equally good position as the court of first instance to assess the
matter.”
[66] In order to grant a dismissal of an action, incommensurably, the three
requirements discussed above must be present. A Court below has no luxury to
ignore them and still emerge with an unimpugnable decision. Therefore, the
discretion to be exercised is a loose one an d does not involve an option to
select equally permissible options. Dismissing an action where the delay is not
inordinate; is excusable and does not inflict serious prejudice, is impermissible
in law .
[67] For all the above reasons, this Court concludes that S ardiwalla J had exercised
a loose discretion and this Court is entitled , on a broader basis , to interfere and
reach its own conclusion as to whether there was (a ) an inordinate delay; (b) it
36 [2025] 2 BLLR 112 (LAC) at paras 15 -16.
was inexcusable; (c) it caused a serious prejudice, which the int erests of justice
demands a draconian action of dismissal.
Delay and the settlement issue
[68] A finding has already been made that there is no inordinate delay. It has
already been stated what an inordinate delay entails. Nevertheless, the delay of
10 or 11 months, although in this Court’s view is not inordinate, it has been
explained. Settlement of litigation is a process anticipated in the rules of the
game of litigation. Generally, when the litigating parties e xplore it, it cannot be
said that a delay is occasioned thereby. Rule 34 of the Uniform Rules
encourages such to happen. In Gollach & Gomperts (1967) (Pty) Ltd v
Universal Mills of Produce Co (Pty) Ltd and others (Gollach )37, it was confirmed
that it is pr actice , which practice is encouraged , for parties to settle their dispute
out of Court where possible.38 Rule 29(6)(c) provides that every party claiming
relief has requested such party’s opponent to make a settlement proposal and
that such opponent has re acted thereto. This must mean that in the course of
litigation , parties must explore settlement of the dispute. Rule 37A(11)(a)
encourages a management Judge to explore settlement on all or some of the
issues. Accordingly, this Court takes a view that expl oring a settlement is part
and parcel of the litigation game . Its exploration cannot be equated to a delay in
prosecution. Put differently , settlement is inextricably interwoven into a game of
litigation to a point that its exploration undoubtedly equates prosecution of an
action.
[69] Settlement indeed avoid s accumulation of litigation costs. Inasmuch as the
MEC disputes any settlement discussions, regard being had to the letter from
Kanjani’s legal team proposing a settlement, it cannot be found to be
improbab le that Kanjani attempted to settle the matter for a certain period
during the litigation stage. The fact that it may have been misled in the process
does not detract from the fact that Kanjani hoped for settlement of the dispute.
37 1978 (1) SA 914 (A) at 921D and 922B.
38 See Maswanganyi v Road Accident Fund (HCAA02/ 2016) 19 May 2017 at para 4.
Kanjani has be en criticis ed by the Court below for holding out for a better
settlement offer. This Court fails to understand the criticism. There is nothing
wrong for Kanjani to hold out for a better settlement. It is an everyday
occurrence in the game of litigation. In this Court ’s view the criticism is, with
respect, ill -founded. Had Kanjani managed to obtain a better settlement offer,
litigation costs would have been obviated.
[70] Before this Court reaches its conclusions, it must deal with the belated
argument , by all accounts, of unclean hands , by placing reliance on the
judgment of the Constitutional Court in Villa Crop Protection (Pty) Ltd v Bayer
Intellectual Property GmbH (Villa)39. The issue of unclean hands was not raised
before Sardiwalla J. As a Court of appeal, this Court is not empowered to deal
with an issue that was never raised at the Court below40. It was impermissible
for this argument to have been raised. In this Court’s view this issue ought to
have been pleaded and was not41.
Conclusions
[71] In summary, this Co urt concludes that in dismissing the action of Kanjani, the
Court below exercised a loose discretion. This Court is entitled to interfere with
that exercise of discretion. The requirements for the dismiss al of an action has
not been demonstrated. As such, the action of Kanjani ought not to have been
dismissed. Accordingly, the appeal must be upheld. This Court takes a view
that section 19 of the Superior Court Act empowers it to render any decision
which the circumstances may require. The litigation in this matter has not been
altogether smooth. It is apparent that the legal team of both parties were
involved, perhaps unconsciously, in a charade of attempting to demonstrate
superior knowledge to each other. Such a charade did not serve the best
interests of this litigation. In such circumstances, this Court must order judicial
39 2024 (1) SA 331 (CC).
40 See Tau Roller Meule (Pty) Ltd v Marcus M Farming CC (A191/2023) [2024] ZAGPPHC 154 (21
February 2024) at para 14
41 See Allcopy Publishers (Pty) Ltd and others v Phillips (00001/24) [2025] ZAGPPHC 209 (7 March
2025) at para 14.
case management of this litigation within the contemplation of Rule 37A of the
Uniform Rules. Such will effectively manage issues like strict time lines for
certain actions which will e nsure finality of the dispute.
[72] On account of all the above reasons, I propose to make the following order :
Order
1. The appeal is upheld.
2. The order of the Court below is set aside and it is replaced with the
following orders:
2.1 The application to dismiss the action is dismissed with costs on
a party and party scale, which costs include the costs of
employing two counsel to be settled or taxed at scale C
2.2 The respondent must pay the costs of this appeal on a party and
party scale, which costs include the costs of employing two
counsel to be settled or taxed at scale C.
3. The parties are directed to forthwith apply for judicial case
management in terms of Rule 37A(1) of the Uniform Rules in respect of
this litigation .
____________________________
GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
___________________________
L RETIEF
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
____________________________
M J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
(I agree and it is so ordered)
APPEARANCES:
For the Appellant : Mr JH Dreyer SC and Mr JW Schabort
Instructed by: Noltes Attorneys, Ermelo
For the Respondent : Mr HC Van Eden SC and Mr K Hopkins
Instructed by: Majavu Inc, Johannesburg
Date of the hearing: 19 March 2025
Date of judgment : 15 April 2025