2
2.1 whether an agreement of mandate was concluded between the plaintiff and the
defendant in terms of which the defendant would prosecute a claim on behalf of
the plaintiff against the RAF as result of injuries alleg edly sustained in a motor
vehicle collision;
2.2 if the court finds that such agreement of mandate was concluded whether the
plaintiff's claim against the defendant for alleged breach of the agreement of
mandate has prescribed .
2.3 At the commencement of hearing of the matter on 4 September 2023, the
separation was accordingly ordered in terms of Rule 33(4). The pleadings that
were the subject of the separation were the following:
2.3.1 the amended particulars of claim : paragraphs 3 and 4 ;
2.3.2 the defendant's plea : paragraph s 3 and 4 and only insofar as they relate to
the issue of mandate ;
2.3.3 the amended special plea : paragraphs 1 to 9; and
2.3.4 the replication to the special plea : paragraphs 1, 2 and 3 .
3. The evidence in the matter was heard on 4 , 5, 6 and 8 September and closing
submissions were heard on 13 December 2023.
4. The plaintiff contends that the defendant breached its mandate in that it failed timeously
to institute her claim against the RAF . The defendant disputes the mandate and
contends t hat the claim ought to have been lodged by 22 April 2015 , that summons
ought to have been served on the RAF by 22 April 2017 and that as a result of the
plaintiff's failure to do so, her claim against the RAF prescribed on 23 April 2017.
5. The plaintiff alle ges that she first became aware of the alleged breach in December
2017 , when the defendant informed her that her claim against the RAF had not been
lodged and that her claim against the RAF had become prescribed.
6. The defendant raised a special plea of prescription. The defendant contends that:
6.1 On 22 February 2013, Mr Sefatsa of the defendant advised the plaintiff that he
would not proceed to lodge a claim on her behalf against the RAF without cover
for the costs of having the plaintiff assessed by a med ical practitioner for the
purposes of completing a serious injury assessment form (RAF 4) since the
3
defendant was not satisfied that the plaintiff’s injury would qualify as a serious
injury as contemplated in the Road Accident Fund Act and Regulation 3(1) of the
regulations promulgated thereunder .
6.2 Thus, as at 22 April 2015, when the claim ought to have been lodged with the RAF,
the plaintiff had actual knowledge of the identity of the debtor and of the facts from
which her debt against the defendant arose.
6.3 Prescription commenced to run from 22 April 2015. By the time the plaintiff served
summons on the defendant on 12 June 2019, her claim had already prescribed in
that more than three years had elapsed from the date when the plaintiff’s debt
arose against th e defendant.
6.4 Alternatively, in the event that the court finds that the plaintiff did not have actual
knowledge of the identity of the debtor and/or of the facts from which her debt
against the defendant arose before 11 June 2016, the defendant contends that
the plaintiff , by exercising reasonable care , could have acquired such knowledge
as early as 22 February 2013 or by 22 April 2015 or at any time before
11 June 2016. Accordingly, it is contended, the plaintiff is deemed to have had
knowledge of the identity of the debtor and of the facts from which the debt arose
before 11 June 2016. In the circumstances, by the time the plaintiff served
summons on the defendant on 12 June 2019, her claim against the defendant had
prescribed.
7. The defendant bears the onus of proving that the claim has prescribed and the plaintiff
has the duty to begin and bears the onus of proving the mandate.
8. There is no dispute that the plaintiff’s claim against the defendant constitutes a debt and
that the applicable period of presc ription is three years. When the debt arose is in
dispute . The plaintiff contends that the debt arose in December 2017 whereas the
defendant contends that it arose on 22 February 2013 or 22 April 2015 or at any time
before 11 June 2016.
9. In September 2020, the plaintiff filed a replication to the defendant’s special plea ,
denying the allegations contained in the special plea and reaffirm ing her version as
pleaded in her particulars of claim.
10. The matter proceeded to trial on the separate d on issues 4, 5, 6 a nd 8 September 2023 ,
when evidence was led by both parties. Written closing submissions were filed
4
subsequently and oral closing submissions were made in December 2023. During the
oral closing submissions, the plaintiff for the first time indicated an intention to amend
her replication in order to place reliance on the provisions of section 12(2) of the
Prescription Act 68 of 1969. The new contention is that the defendant willfully prevented
the plaintiff from coming to know of the existence of the debt. Section 12(2) of the
Prescription Act provides that:
"If the debtor willfully prevents the creditor from coming t o know of the existence
of the debt, prescription shall not commence to run until the creditor becomes
aware of the existence of the debt."
11. The plaintiff now seeks leave to amend. During closing submissions on
13 December 2023 the plaintiff uploaded a further reply to the defendant's special plea.
The court directed that it be regarded as a notice of intention to amend and afford ed the
defendant an opportunity to respond thereto. The defendant timeously filed its notice
of objection on 25 January 2024. Thereafter, the plaintiff had to file her application for
leave to amend within 10 days (i.e. on or before 8 February 2024) . She now applies for
condonation for the late filing of the application for leave to amend and for an
amendment to her replicati on.
12. In the plaintiff's replication to the defendant's special plea and plea dated 29 September
2020, she does not rely on section 12(2) of the Prescription Act as a defen ce to the
special plea of prescription, despite the fact that the plaintiff knew of the plea of
prescription from the date of filing thereof as well as the evidence that the defendant
intended to rely on.
13. During the trial it was repeatedly put to the plaintiff's witnesses that if their versions were
correct , the plaintiff would have alle ged and pleaded willful prevention in terms of section
12(2) of the Prescription Act. However, there w as no amendment to the plaintiff's
replication before or during the defendant's witness 's evidence in chief and cross -
examination , and it was never alleged that Mr Sefatsa willfully pre vented the plaintiff
from becoming aware of the debt.
14. The defendant filed its written submissions on 22 September 2023 and for reasons that
are no t germane to this application, the plaintiff only filed her written submissions a
month later , on 23 October 2023.
5
15. In paragraphs 29 and 30 of the defendant's written submissions, the following is stated:
"29 If indeed the plaintiff contacted Sefatsa in 2015 and 2016 and Sefatsa
informed her that all was still on track with her claim and that he would be
arranging for her to be assessed by a medical practitioner as testified by
Malele [the plaintiff's brother] , it begs the question why the plaintiff did not
plead that the defendant wilfully prevented her from knowing that the claim
had not been lodged by 22 April 2015. This conduct would certainly meet
the requirements of 12(2) of the Prescription Act.
30 The c ourt must infer from the plaintiff’s intentional election not to rely on a
wilful prevention that the aforementioned version by Malele is improbable
and ought to be rejected. Similarly, given the contradictions, the plaintiff’s
version that she called Sefa tsa in March 2017 for the first time ought to be
rejected as well. Once again, if this version is to be accepted, it would mean
that the defendant wilfully prevented the plaintiff from coming to know that
the claim had not been lodged, yet the plaintiff fa iled to plead such wilful
prevention. In addition, both versions by the plaintiff are not reliable; rather
than corroborate the plaintiff’s version, Malele’s version contradicted the
plaintiff’s version."
16. At no time after the conclusion of evidence on 8 September until the filing of her written
submission on 23 October 2023, did the plaintiff seek to amend her replication in order
to rely on section 12(2) of the Prescription Act and she also did not do so after she filed
her written submissions on 23 Octobe r 2023 , until oral closing submissions on
13 December 2023 .
17. During argument on 13 December 2023, Mr Smit on behalf of the plaintiff referred to the
defendant's argument in its heads to the effect that the plaintiff should have pleaded
willful prevention. He submitted that it could not be said that prevention had been willful,
but that it could be said that the matter had been handled negligently. The plaintiff and
Mr Malele labo ured under the impression that all was in order and this impression had
been created negligently.
18. After his initial submission s, the court ask ed Mr Smit to clarify the willful prevention point
and to confirm that it was not the plaintiff's case that th ere had been willful prevent ion,
but only negligence. Mr Smit replied that he could state that there was negligence and
that the court must determine if there had been willfulness. He submitted that the court
6
could infer that it was willful because it would be submitted that the statements could
only have been made without Mr Sefatsa's satisfying himself that they were true. Mr
Smit argued that Mr Sefatsa just wanted to appease the plaintiff and Mr Malele and that
all evidence pointed to the fact that the plaintiff and Mr Malele had been con tinuously
misinform ed.
19. At this juncture, Mr Smit indicated that he would move for an amendment to deal with
the aspect of willful prevention and that the defendant would suffer no prejudice as result
of such amendment .
20. Ms Segeels -Ncube on behalf of the defendant strenuously objected to the amendment
as not being proper ly before the court. She pointed out that if there had been willful
prevention , it would have been pleaded in the replication and that she would have put it
to both witnesses for the plaintiff . She argued correctly that there was no concept of
negligent prevention in the Prescription Act, and that only willful prevention , if pleaded
and proved , would absolve the plaintiff.
21. In reply, Mr Smit for the plaintiff moved an amendment to the replication from the bar
and at the same time uploaded a document headed " Plaintiff's reply to the defendan t's
special plea " on CaseLines at 002-26 to 002-27. This purported amendment read as
follows:
"1. The defendant willfully prevented the plaintiff from coming to know of the
existence of the debt by misrepresenting to the plaintiff and/or Mr Malele that
the defendant had taken all the necessary steps in order to prosecute the
plaintiff's claim and by persisting with this misr epresentation until or about
December 2017 .
Wherefore prescription commenced to run at the earliest from December
2017 ."
22. Ms Segeels -Ncube quite correctly pointed out that there could be no amendment until
there had been a notice of amendment and if the plaintiff wanted to bring a late
amendment, she had to do so properly. She described the purported amendment as
"an ambush in the clearest form ", as willful prevention had not been pleaded and it was
not a case that the defendant h ad to meet.
23. Both parti es agreed (correctly) that in terms of Rule 28(10), the court might at any stage
before judgment grant leave to amend any pleading or document on such terms to costs
7
or other matters as it deems fit. However, Ms Segeels -Ncube stresse d that any
amendment had to comply with Rule 28.
24. The court directed that the document uploaded by the plaintiff at 002 -26 and 002 -27 on
CaseLines was to be regarded as a notice of intention to amend and not an amendment
per s e. The defendant was given leave to respond to the proposed amendment within
ten (10) days from 13 December 2023, excluding the dies non , after which the matter
would be dealt with in terms of provisions of Rule 28. The matter was postponed to a
day to be arranged and costs were reserved.
25. The defendant filed its notice of objection in terms of Rule 28(3) timeously on 25 January
2024. This meant that if the plaintiff wished to amend her replication, she was required ,
within ten (10) days, to lodge an application for leave to amend. It is common cause
that the last date for lodgement of this application was 8 February 2024 . The plaintiff
did not lodge an application for leave to amend on 8 February 2024 or in the days
subsequent thereto . Accordingly, I instructed my secretary on 27 February 2024 to write
to the parties in the following terms:
"The Court notes that subsequent to delivery of the defendant's objection in terms
of Rule 28(3), the plaintiff did not lodge an application for leave to amend in terms
of Rule 28(4).
The court will now hear further submission s, if any, by way of a virtual hearing . …
The parties are requested to ascertain their joint availabil ity… and revert to
Mr Senoko. "
26. On 29 February 2024, Mr Smit, counsel for the plaintiff, advised that:
"It is my instruction to apply for condonation for the late filing of an application for
leave to amend . The application will be filed by no later than Monday, 4 March
2024 ."
27. The plaintiff indeed filed an application for condonation and leave to amend on 4 March
2024.
28. The defendant file d an answering affidavit on 10 April 2024.
29. The plaintiff did not file a replying affidavit , nor did she as dominus litis , take any further
steps to advance the application . In order to prevent further delay in progressing this
matter, the court took further steps, t hrough the office of the Registrar of the Deputy
8
Judge President, to set the application down for hearing . For a variety of reasons ,
including the availability of all concern ed, the earliest opportunity for a hearing during
recess was 10 December 2024, almost a year after hearing closing submissions.
30. Sub-rule 27(3) provides that a court may "on good cause shown " condone non -
compliance with the rules.
31. Van Logge renberg1 state s that:
"This gives the court a wide discretion which must in principle be exercised with
regard also to the merits of the matter seen as a whole . ...
The g raver the consequences which have already resulted from the o mission, the
more difficult it will be to obtain the indulgence. There may also be an
interdependen ce of, on the one hand, the reasons for and the extent of the
omission and, on the other hand, the merits of the case . The courts have
consistently refrained from attempting to formulate an exhaustive definition of what
constitutes "good cause ", because to do so would hamper unnecessarily the
exercise of the discretion ."
32. In Grootboom v National Prosecuting Authorit y2 the Constitutional Court said the
following:
"It is now trite that condonation cannot be h ad for the mere asking. A party seeking
condonation must make out a case entitling it to the court's indulgence. It must
show suf ficient cause. This requires a party to give a full explanation for the non-
compliance with the rules or court's directions. Of great significance, the
explanation must be reasonable enough to excuse the default .3
…
In many instances, very flimsy explanations are proffered . In others, there is no
expla nation at all. The prejudice caused to the court is self -evident. A message
1 Erasmus Superior Court Practice, second edition ("Van Loggerenberg "), at pages D1 Rule 27 -2 and D1 Rule 27 -
3 and the cases cited in footnotes 14 and 5
2 2014 (2) SA 68 ( CC)
3 at paragraph [23 ], p76 C -D
9
must be sent to litigants that the rules and the court's directions cannot be
disregarded within impunity ."4
33. Van Loggerenberg5 states that one of the princip al requirements for the favourab le
exercise of a court's discretion is
"… that the applicant should file an affidavit satisfactorily explaining the delay. In
this regard, it has been held that the defendant mus t at least furnish an explanation
of his default sufficiently full to enable the court to understand how it really came
about , and to assess his conduct and motive s. A full and reasonable explanation
which covers the entire period of delay must be given6. If there has been a long
delay, the court should require the party in default to satisfy the court that the relief
sought should be granted , especially in a case where the applicant is the domi nus
litis. It is not sufficient for the applicant to show th at condonation will not result in
prejudice to the other part y. An applicant for relief must show good caus e; the
question of prejudice does not arise if it is unable to do so. "7
34. Most authorities also l ay down the requirement that the granted indulgence must not
prejudice the other party in any way that cannot be compensated for by a suitable order
as to postponement and costs.8
35. A litigant who asks for an indulgence should act with reasonable promptitude . She must
be scrupulously accurate in her statement to the court and other neglectful acts in the
history of the case are relevant to show her attitude and motives.9
36. In Grootboom v National Prosecuting Authority10, the Constitutional Court held that the
standard for considering an application for condonation is the interest s of justice. The
court stated the following:
"However, the concept 'interest s of justice ' is so elastic that it is no t capable of
precise definition… It includes : the nature of the relief sought; the extent and cause
of the delay ; the effect of the delay on the administration of justice and other
4 at paragraph [34] , p79 A -B
5 at p D1 Rule 27 - 4
6 Van Wyk v Unitas Hospital , 2008 (2) SA 472 ( CC) at par [22] , p477 E -F
7 Standard Gene ral Insurance Co Ltd v Eversa fe (Pty) Ltd , 2000 (3) SA 87 (W) at paragraphs [12] and [15] , pp93
E-H and 95 D -F
8 Van Loggerenberg p D Rule 27 – 5 and authorities there cited
9 Duncan t/a San Sales v Herbor Investments (Pty) Ltd , 1974 (2) SA 214 [T] at 216 E to H
10loc ci t at paragraph [22] , 76 A -C per Bosielo AJ.
10
litigants; the reasonableness of the explanation for the delay ; the importance of
the issue to be raised ...; and the prospect s of success.
It is crucial to reiterate that … the ultimate determination of what is in the interest s
of justice must reflect due regar d to all the relevant fact ors but it is not necessarily
limited to those mentioned above. The particular circumstances of each case will
determine which of these factors a re relevant. "
37. The court also stated that:
"The interest s of justice must be determined with reference to all relevant factors.
However, some of the factors may justifiably be left out of consideration in certain
circumstances. For example where the delays are unacceptably excessive and
there is no explanation for the delay, there may be no need to consider the
prospects of success . If the period of delay is short and there is an unsatisfactory
explanation but there are reasonable prospects of success, con donation should
be granted. However, despite the presence of reasonable prospects of success ,
condonation may be refused where the delay is excessive, the explanation is non -
existent and granting condonation would prejudice the other party. As a general
proposition, the various factors are not individually decisive but should all be taken
into account to arrive at a conclusion as what is in the interest s of justice ."11
38. It has also been held by the Appellate Division (as it then was) that an applicant should,
whenever he realises that he has not complied with a rule of court, apply for condonation
without delay12.
39. Van Logge renberg submits that an application to amend as contemplated in rule 28(4)
should comply with the relevant provisions of rule 6 and cannot be made orally from the
bar.13 This was also the attitude of the defendant's counsel in this matter and one with
which the court agrees. To the extent therefore, that the plaintiff's counsel purported to
make an application for amendment from the bar on 13 December 2023, this was not
competent. However, in order to expedite matters and to accommodate and be fair to
both parties, I made an order converting (for want of a better word) the purported
amendment uploaded on CaseL ines on that day and during argument into a notice of
intention to amend and directed that it be regarded as such, while at the same time
11 per Zondo J (as he then was) at paragraph [51], 83 G -H
12 Commissioner for Inland Revenue v Burger , 1956 (4) SA 446 (A) at 449 G - H
13 at p D1 Rule 28 -2
11
affording the defendant ample opportunity to respond thereto and directing that
thereafter the matter be dealt with according to the provisions of Rule 28. This amounted
to an indulgence to the plaintiff.
40. In Vinpro NPC v President of Republic of South Africa14, the full cou rt held as follows:
"On this score , it is trite law : that a court is vested with a discretion as to whether
to grant or refuse an amendment ; that an amendment cannot be granted for the
mere asking thereof; that some explanation must be offered therefor; that this
explanation must be in the founding affidavit filed in support of the amendment
application; that if the amendment is not sought timeously , some reason must be
given for the delay; that the parties seeking the amendment must show prima facie
that the amendment has something deserving of consideration ; that the part y
seeking the amendment must not be mal a fide; that the amendment must not be
the cause of an injustice to the other side which cannot be compensated by costs;
that the amendment should not be refused simply to punish the applicant for
negle ct and that mere loss of time is no reason, in itself, for refusing the
application ."
41. In Moolman v Estate Moolman15, the court held that:
"[T]he practical rule adopted seems to be that an amendment will always be
allowed unless the application to amend is mala fide or unless such amendment
would cause an injustice to the other side which cannot be compensated by costs,
or in other words unless the parties cannot be put back for the purposes of justic e
in the same position as they were when the pleading which it is sought to amend
was filed. "
42. Van Loggerenberg16 states that there may however be cases where no terms would
overcome the prejudice which the amendment would cause to the other party, citing as
an example that an amendment would not be allowed where it is applied at such a late
stage in the proceedings and not timeously raised to enable proper inve stigation and
response thereto .
14 Unreported Western Cape Division judgment, WCC case no 1741/2021 at paragraph [25]
15 1927 CPD 27 at 29 .
16 Page D1 Rule 28 -8 and footnote 8 and the authorities there cited.
12
43. There is ample authority for the rule that the onus rests on the part y seeking the
amendment to establish that the other party will not be prejudiced by it.17
44. In Minister van die SA Polisie v Kraatz18 and Gollach & Gomperts (1967) (P ty) Ltd v
Universal Mills & Produce Co (Pty) Ltd19, the Appellate Division (as it then was) stressed
that a litigant who seeks to add new grounds of relief at the eleventh hour does not claim
such an amendment as a matter of right but rather seeks an indulgence. The applicant
has to prove that he did not delay the application after he became aware of the material
upon which he propose s to rely. He must explain the reason for the amendment and
show prima facie that he has something deserving of consideration; a so-called triable
issue.20
45. In Ciba-Geigy (Pty) Limited v Lushof Farms21, the Appellate Division held that the greater
the disruption caused by the amendment the greater the indulgence sought , and
according ly the burden upon the applicant to convince the court to accommodate him.
In that case, the cases of both defendants had already been closed. They would have
had to reopen their cases and recall w itnesses to address the new allegations. The
Appella te Division accordingly found that the y would suffer serious prejudice and upheld
the trial court 's refusal of the amendment. The similarities with the present application
are obvious.
46. In his submissions, Mr Smit on behalf of the plaintiff argued that the delay in bringing the
application for amendment was not inordinate as it had been filed less than a month
from the due date (being 8 February 2024). He further submitted that the re were valid
reasons for the delay, although each and every day could not be accounted for. He
argued that the delay was very short and that the prospects of success were very good .
47. He further argued that the most important point was that the defendant's version was
that the conversations that constituted the alleged wilful prevention did not take place
and that therefore the defendant 's counsel could not ask any more questions regarding
conversations that did not take place. In her submissions, Ms Se geels -Ncub e for the
defendant said that the difficulty with the plaintiff's condonation application was that the
17 Van Logge renberg page D1 Rule 28 -9 and the authori ties cited in footnote 1 on that page
18 1973 (3) SA 490 (A) at 512 E - H
19 1978 (1) SA 914 (A ) at 928 D
20 Trans -Drakensberg Bank Limited (under judicial management) v Combined Engineering (Pty) Limited 1967 (3)
SA 632 (D) 641 A
21 2002 (2) SA 447 (SCA) at 464 E
13
devil in the detail had been avoided and that this was not a case where the court's
discretion should be exercised in favour of the plaintiff .
48. She pointed out that there were three key factors to be considered in determining the
application for condonation namely: first, the extent and cause of the delay; second, the
explanation for the delay; and third, the prospects of success, meaning not only the
prospect s of success in the main action but also , crucially , in the application for
amendment. The court agrees with this analysis.
49. Referring to paragraph [23] of the Grootboom judgment, it was argued that the conduct
of the applicant had to be reasonable enough to excuse the default. The explanation of
the applicant was not reasonable because it only start ed on the day that the application
for amendment was due. There was no explanation as to why it was not filed on that
day, nor is there any explanation as to what happened before. The court needs to hear
what the p laintiff did to comply or attempt to comply with the deadline first , and only then
what caused her inability to do so. The applicant only deals with what happened
afterwards.
50. The applicant must deal with the prospects of success of the application for leave to
amend and this was nowhere dealt with. The applicant must also explain why the
amendment was brought so late , particularly in the circumstances of the case , when the
issue of wilful prevention had been flagged numerous times. The plaintiff must fully
explain the delay in bringing the amendment, as in the absence of that it smacks of an
ambush. The applicant simply says that the amendment is brought to bring it in line with
evidence, but this is not so. It was repeatedly put to the plaintiff's wit nesses that if their
version was correct, they would have pleaded wilful prevention upfront. It was not about
Mr Sefatsa's version that the conversations never happened ; it was about the veracity
of the plaintiff's version. Mr Sefatsa had never been told that he had to meet a case of
wilful prevention . If the plaintiff had pleaded wilful prevention before the trial, the
defendant would have interrogated wilful prevention and what constitutes wilful
prevention, Ms Segeels -Ncube argued.
51. She further argued that the applicant had not dealt with prejudice , on which she bears
the onus . She pointed out that there was also prejudice to the court . As regards
prejudice, the following is stated in paragraph 11.4 of the respondent's answering
affidavit at 020-28:
14
51.1 "The suggestion that the respondent has not suffered prejudice is incorrect. Not
only was the respondent entitled to finality of this matter, but it was also entitled to
assume that the applicant had no intention to pursue the leave to amend. This
has caused further delay in a long line of delays caused by the applicant. The
mere fact that the applicant brought the proposed amendment on the day when
closing argument was heard, shows the prejudice suffered by the respondent. The
applicant does not addr ess this at all ."
52. In paragraph 12.6 of the respondent's answering affidavit at 020 -29 - 020-30, the
following i s stated:
"If the amendment had been made timeously and the applicant relied on wilful
prevention, the respondent would have extensiv ely cross -examined the
applicant's witnesses on the veracity of their versions and whether those versions
demonstrate wilful prevention. The respondent would also have spent a fair
amount of time in examination in chief of its own witness to demonstrate t hat there
was no wilful prevention. The applicant's failure to amend timeously has deprived
the respondent of this opportunity. To allow the amendment would not result in
the full ventilation of the issues, it would only assist the applicant to close a g ap
she did not appreciate until closing argument. This would severely and
irretrievably prejudice the respondent. The respondent is entitled to know the case
it has to meet timeously in order to prepare its defence accordingly. "
53. The plaintiff did not fil e a replying affidavit and did not address these clearly articulated
points of prejudice.
54. Ms Segeels -Ncube argued that there was no prejudice to the plaintiff because on the
plaintiff's own version , she had led all the evidence she want ed to lead. This was not a
case where the plaintiff was non -suited.
55. She also argue d that there was no proper explanation of the late amendment . The
applicant only says it is to bring it in line with its evidence. However, the cases make it
clear that the party seek ing amendment must say why it is late and why it did not bring
the amendment earlier.
56. It was further argued that the proposed amendment, if granted, would result in reopening
of the case where the plaintiff has failed to explain to the court why it should come to her
aid at such a late stage.
15
57. Referring to the Ciba-Geigi case , it was argued that the greater the disruption caused
by the amendment as in the present case , the greater the indulgence sought , and hence
the burden upon the applicant to convince the court to accommodate he r. The plaintiff
has not met this burden , it was argued.
58. In reply, Mr Smit said that if the amendment were to be granted , the case need not be
reopened. He said the amendment was "merel y a question of housekeeping" for the
plaintiff to bring the c ase in line with the evidence led. However, the plaintiff's grounds
of prejudice are not addressed seriatim or at all.
59. The first difficulty that the applicant face s in this application is providing a full and proper
explanation for her failure to comply with the directions of the court and the time limits
imposed by Rule 28. As the Constitutional court pointed out in Grootboom , it is of great
importance that the explanation must be reasonable enough to excuse the default. In
the present case, the founding affidavit states nothing about the steps taken by the
applicant to submit a proper application for leave to amend by the expiry date of
8 February 2024 .
60. Mr Jordaan (the plaintiff's attorney who deposed to the affidavit in support of the
application) states that he developed back pain on that day and then provides doctor's
certificates that attest to his incapacity to work on a number of days during the period
spanning from that day to 4 March 2024, when the application for amendment was
eventually filed. What the court finds of significance is that Mr Jordaan or a member of
his office did not inform the defendant or the court on or before 8 February 2024 of the
fact that the applicant would be unable to file an application timeously. There was also
no attempt to approach the respondent for an extension. What is also significant is that
during the period in question, it appears that Mr Jordaan was well enough to attend to
other matters and that there are days when his una vailability or inaction is unexplained
and unaccounted for. He has not been "scrupulously accurate" in his explanation to the
court. The conclusion seems inescapable that, had it not been for th e Court's email of
27 February 2024 pointing out that the applicant had not filed an application for leave to
amend, the matter would have been delayed even further. The law provides that an
applicant should whenever he realises that he has not complied with a rule of court,
apply for condonation without delay. This has not happened in the present case ,
because even when the court brought to his attention that the application had not been
brought, he did not deal with it immediately. Mr Sm it only replied on 29 February 2024
that he had been instructed to bring an application for condonation and this application
was only filed on 4 March 2024 . The law is clear that an applicant for condonation must
16
furnish an explanation sufficiently full t o enable the court to understand how it really
came about and to assess his conduct and motives. A full and reasonable explanation
which covers the entire period of delay must be given.22 This has not been forthcoming
in the present application.
61. That being the case, it needs to be considered whether there are other factors which ,
taken as a whole , would render it in the interests of justice to grant condonation. In this
regard, the prospects of success not only in the main matter but also in the application
for amendment, assume s even more of importance . In this re spect , the facts and
argument s which the applicant place d before the court are scant . They largely amount
to assertion s that th ere would be no prejudice to the respondent . So for example in
paragraph 23 at 020 -10 of Mr Jordaan's affidavit, he simply states that:
"In its objection, the defendant does not state what its prejudice would be if the
amendment is allowed . I humbly submit that there is none ."
62. This bald asse rtion was repeated by Mr Smit during closing submissions on
13 December 2023 and during the argument in the current application on
10 December 2024.
63. By contrast, the respondent sets out in some detail in its answering affidavit in this
application why it wo uld suffer prejudice. These reasons are elaborated upon in the
defendant's heads of argument and were further expanded on in argument on
10 December 2024.
64. The applicant did not file a replying affidavit to address these concerns. In the
applicant's heads of arg ument, the question of prospect s of success and prejudice are
also dea lt with very cursorily . It is merely said in paragraph 8 of her heads of argument
that the plaintiff's prospects of success in the action are patent from the founding affida vit
and the evidence led at the trial. The prospects of success of the amendment are not
dealt with, except in paragraph 9, where it is said that in respect of the question of
prejudice, " the defendant suffers non e, whereas the plaintiff will suffer greatly if the
condonation is not granted since this case is of the utmost importance to her financial
future ". The applicant is generally dismissive of the prejudice that the defendant will
suffer as a result of the very late amendment sought and never a ddresses with any
granularity the concerns enumerated by the defendant head -on, except to say that the
case need not be reopened because it was " merely a question of housekeeping for the
22 Van Wyk v Unitas Hospital , paragraph [23] 477 E -F
18
Appearances:
Appearance for Applicant : Mr DJ Smit
Instructed by: Leon JJ van Rensburg
Applicant's attorneys, Edenvale
Appearance for Respondent: Adv L Segeels -Ncube
Instructed by: Eversheds Sutherland (SA) Inc, Johannesburg
Date of hearing: 10 December 2024
Date of Judgment: 28 January 2025