2 Introduction
[1] This is an application to uplift a bar and condone the late delivery of a plea.
[2] On 25 March 2021, the respondent served a summon s for damages flowing from
the termination of a contract. In response , the applicant delivered a notice of
intention to defend on 22 April 2021 .
[3] Under rule 22(1) of the Uniform Rules of Court, the applicant was required to
deliver his plea (with or without a claim in reconvention), or an exception (with or
without an application to strike out) within 20 days after he delivered his notice
of intention to defend.
[4] Regard be ing had to the intervening public holidays, the applicant’s plea or
exception was d ue on 21 May 2021.
[5] It is common cause that t he applicant did not deliver a plea or an exception , and
that the re sponden t thereafter served a notice of bar on 21 May 2021, demanding
that the applicant plead within five days , failing which, he would be ipso facto
barred from doing so.
[6] The applicant did not deliver his plea or exception and was thus, as at 28 May
2021, barred from pleading.
[7] According to the applicant’s state attorney, Rudzani Nemakonde, senior counsel
had advised during consultation that it was not necessary to deliver a plea, but
that the appropriate step was to lodge an interlocutory application to stay the
action based on the arbitration clause contai ned in the contract concluded
between the parties (the stay application).
3 [8] The stay application was served on the respondent on 28 May 20211; was
eventually argued before Badenhorst AJ on 29 August 202 3 and was dismissed
with costs on 1 September 2023.
[9] Approximately four months after the stay application was dismissed, the
applicant attempted to serve his plea. He was reminded by the respondent that
a bar was in place, and as a result, launched the present application on 5
February 2024.
[10] In this applica tion, t he applicant seeks the following the relief :
a. uplift ing the bar placed on him in the main action;
b. condoning his failure to deliver his plea in the main action, within the time
frame stipulated in rule 22(1) of the Uniform Rules of Court ;
c. directing him to serve and file his plea within five court days from the date
of granting of an order; and
d. costs of the application , in the event it is opposed by the respondent.
Upliftment of the Bar
[11] Rule 27 of the Uniform Rules of Court deals with extensions of time, removals of
bar and condonation.
[12] Under rule 27(1) read with rule 27(2) of the Uniform Rules of Court, in the
absence of an agreement between the parties, the court may, upon application
on notice and on good cause shown, m ake an order extending or abridging any
1 This is the same day on which the applicant’s plea was due.
4 time prescribed , and upon ordering such exten sion, may make such order as to
the recalling, varying or cancelling of the results of the expiry of any time so
prescribed , whether those results flow from any terms of a n order or from the
Uniform Rules of Court .
[13] In Smith NO v Brummer NO and another, Smith NO v Brummer2 , Brink J
observed that an application for a removal of a bar ought to be granted where:
a. the applicant has given a reasonable explanation for his del ay;
b. the application is bona fide and not made with the object of delaying the
opposite party’s claim;
c. there has not been a reckless or intentional disregard of the rules of court;
d. the applicant’s action or defence is not ill -founded; and
e. any procedural prejudice caused to the opposite party can be compensated
for by an appropriate order as to costs.
[14] I consider these factors in turn.
A reasonable explanation for the delay
[15] An explanation is reasonable if an applicant shows that his default was neither
wilful nor due to gross negligence on his part.3
2 [1954] 3 All SA 124 (O) at 358A. Also reported as Smith v Brummer, Smith v Brummer 1954
(3) SA 352 (0).
3 Kajee and others v Investment and Finance Corporation (Pty) Ltd [1962] 1 All SA 296 (D);
1962 (1) SA 575 (D).
5 [16] Though the applicant was required to deliver his plea by 28 May 2021, he only
attempted to do on 8 January 2024. That is a substantial delay.
[17] A reading of the papers indicates that a major cause of the de lay was the
applicant’s pursuit of his ill -fated stay application. That application was served on
28 May 2021 , but was only heard more than two years later, on 23 August 2023.
[18] The two year lapse appears to be as a result of a) the late delivery of the
respondent’s answering affidavit on 3 November 2021 and b) the applicant’s
failure to timeously deliver his heads of argument and practice note.4
[19] According to Mr Nemakonde, upon receipt of the judgment by Badenhorst AJ,
he immediately sent it to the relevant o fficials of the applicant’s department for
further instructions. These instructions were evidently not forthcoming since no
further steps were taken by the applicant until the respondent delivered an
application for default judgment on 3 November 2023 (the default judgment
application).
[20] The default judgment application undoubtedly spurred the applicant into acting
and a fresh consultation with new counsel took place on 13 November 2023, with
a follow up on 23 November 2023. These consultations resulted in the plea being
prepared in December 2023 and delivered on 8 January 2024.
[21] It seems as though none of the applicant’s officials or legal representatives had
regard to the notice of bar when these consultations took place and /or the plea
was prepared.
4 The applicant had to be compelled to deliver his heads of argument and practice note by way
of a separate interlocutory application, which was heard on 18 January 2023.
6 [22] It was only when the respondent informed the applicant that he was in fact barred
from pleading , that he brought the application to uplift the bar on 5 February
2024.
[23] As I have indicated above, there is a substantial delay between the applicant
being barr ed from pleading in May 2021 and the m isguide d delivery of his plea
in January 2024 .
[24] It is apparent to me from the explanation provided by Mr Nemakonde, as well as
the facts placed before me by the respondent, that there were several instances
where the applicant could, and should have acted with more haste to ensure that
the matter reaches finality, but did not do so.
[25] However, the applicant has, for the most part, explained his delay – a significant
cause of which was his pursuit of the ill -fated stay ap plication. In this regard, I
am aware that the applicant was acting on advice from senior counsel, for which
he cannot be faulted.
[26] It is for this reason that I cannot regard the applicant’s delay as either wilful or
grossly negligent .
[27] I am accordingly satisfied that the applicant has provided a reasonable
explanation for his delay in pleading.
7 The application is bona fide and is not made with the object of delaying the opposite
party’s claim
[28] The primary purpose of uplifting the bar is to provide the applicant with an
opportunity of placing his defence before the Court who is to determine the
respondent’s damages claim .
[29] As I deal with in greater detail below, t he applicant’s defence appears to be that
the respondent’s poor performance entitled him to terminate the contract .
[30] According to the applicant, the respondent had not comp leted its scope of works
at termination, notwithstanding the fact that the contract ha d been extended more
than once.
[31] Whether the applicant has a valid defence in refuting the respondent’s damages
claim, or , whether the respondent is contractually entitled to such damages, are
issues which require proper ventilation. Such ventilation may however be
impeded if the Court is lim ited to t he evidence and v ersion put up by the
respondent only.
[32] I am aware that a plea already been prepared , and thus, all that the applicant
seeks is an opportunity of placing that plea before the Court who is to decide the
respondent’s damages claim.
[33] For those reasons, I find that the applicant’s intention in bringing the application
to uplift the bar is bona fide and is not intended to frustrate the respondent’s
claim.
8 There has not been a reckless or intentional disregard of the Uniform Rules of Court
[34] There was no evidence before me that the applicant had intentiona lly or
recklessly disregarded the Uniform R ules of Court.
[35] Rather, the applicant had timeously delivered his notice of intention to d efend
and was advised against pleading , in favour of the s tay application. The applicant
had also brought this application within weeks of being reminded of the notice of
bar.
[36] That is n either an intentional nor a reckless disregard of the Uniform Rules of
Court.
The applicant’s defence is not ill -founded
[37] As I had indicated above, t he applicant alleges that the respondent had
performed poorly under the contract. Having been contracted to construct 200
houses under the Reconstruction and Development Programme (“RDP”) in
November 2017 , and notwithstanding several extensions to the contract, the
respondent had not constructed the 200 houses when the contract was
terminated in September 2019.
[38] Though I need not determine the veracity of the respondent’s damages claim, or
the applicant’s d efence against that claim , I cannot find that the applicant ’s
defence is ill -founded for the reasons more fully explained in relation to the
applicant’s prospects of success .
9 An appropriate costs order
[39] I discuss costs more fully below, but it suffices to note here that any procedural
prejudice caused to the respondent , may be compensated by way of an
appropriate costs order.
[40] I am accordingly satisfied that the applicant has met the requirements set out in
Brummer , and that he has made out a proper case for the bar to be uplifted.
Condonation
[41] In addition to uplifting the bar, the applicant seeks an order condoning his failure
to deliver his plea within the time period stipulated under rule 22 (1) of the
Uniform Rules of Court .
[42] In terms of rule 27(3) of the Uniform Rules of Court, the Court may, on good
cause shown, con done any non -compliance with the Uniform Rules of Court .5
[43] What is to be proved in order to show good or sufficient cause, was set out in
Melane v Santam Insurance Co Ltd6, as follows:
“In deciding whether sufficient cause has been shown, the basic principle is that
the Court has a discretion, to be exercised judicially upon a consideration of all the
facts, and in essence it is a matter of fairness to both sides. Among the facts
usually relevant are the degree of lateness, the explanation therefor, the prospects
of success, and importance of the case. Ordinarily these facts interrelated: they
are not individ ually decisive, for that would be a piecemeal approach incompatible
with a true discretion, save of course if there are no prospects of success there
5 Good cause is also termed “sufficient cause”.
6 [1962] 4 All SA 442 (A); 1962 (4) SA 531 (A).
10 would be no point in granting condonation. Any attempt to formulate a rule of
thumb would only serve to ha rden the arteries of what should be a flexible
discretion. What is needed is an objective conspectus of all the facts. Thus a slight
delay and a good explanation may help compensate for prospects of success
which are not strong. Or the importance of the is sue and strong prospects of
success may tend to compensate for a long delay. And the respondent’s interest
in finality must not be overlooked .”
[44] In taking an objective conspectus of all the facts for condonation, I am particularly
called upon to focus on w hether the applicant’s lateness in pleading is
compensated by his prospects of success in the main action. However, I have
already dealt with the issue of delay or lateness, and thus confine my focus to
the applicant’s prospects of success in the main acti on.
The applicant’s prospects of success in the main action
[45] The main action is premised on a damages claim flowing from the contract
concluded between the parties on 24 November 2017.
[46] In terms of that contract, the respondent undertook to construct 200 top
structures, referred to as “RDP houses” or “low cost housing”, in So shanguve
South Extension 1, 2 and 3 , within a twelve month period.
[47] According to the applicant, the respondent had dismally failed to construct the
required number of quality assured houses and b y 24 October 2018 (more than
a year after the contract was concluded), the respondent had only built ten
houses.
11 [48] The contract was extended several times and the final date for the completion
and delivery of all two hundred houses was 30 September 2019.
[49] The applicant did not complete the two hundred houses by 30 September 2019
and according to Mr Ronald Maguga, the Chief Construction Project Manager:
Northern Cluster, the houses actually built by the respondent were poorly
constructed . In addition, the respondent did not complete two quality assured
show houses.
[50] The applicant accordingly made the decision not to extend the contract for a
further period and the contract was effectively terminated.
[51] The applicant’s principal defence agai nst the r espondent’s damages claim
appears to be that the contract was lawfully terminated as a result of the
respondent’s poor performance and non-compliance with its contractual
obligations.
[52] In response, the respondent avers that there was a three month delay to the start
of the project and that the applicant had delayed payments to it, which in turn
delayed its ability to perform under the contract.
[53] Unfortunately, t he respondent has not addressed the most pertinent allegation ,
which is that it had not completed the construction of the 200 houses by 30
September 2019 as it was contractually obligated to do.
[54] Though the respondent denies the allegation that it had performed poorly under
the contract, no other information or facts was put up by the resp ondent in
support of this denial.
12 [55] I need not make a determination on whether the respondent has properly
performed under the contract, but I do need to consider whether the applicant
has strong prospects of success in the main action .
[56] In neutralising th e strength of those prospects, it would have been helpful if the
respon dent had taken th is Court into its confidence on what had actually
transpired in relation to its performance under the contra ct and more importantly,
whether it has complied with its co ntractual obligations.
[57] The scarcity of information by the respondent relating its performance under the
contract, makes it difficult to negate the strength of the applicant’s prospects of
success in the main action.
[58] In addition, and as I have dealt with above, the applicant has reasonably
explained the lateness of his plea.
[59] In the circumstances, the a pplicant’s reasonable expla nation and strong
prospects of success in the main action, are sufficient to show good cause and
condone his non -compliance with rule 22(1) of the Uniform Rules of Court .
Costs
[60] It was conceded by the applicant’s counsel during the hearing that the applicant
should be liable for the costs of the application.
[61] This is in line with the general rule that an applicant who seeks an indul gence,
should be responsible for all of the waste d costs incurred as a result of the
1 For the Applicant:
For the Respondent: L Montsho -Moloisane SC
Instructed by the State Attorney,
Johannesburg
N Baloyi
Instructed by Baloyi Katlego Attorneys
Date of Hearing : 11 November 2024
Date of Judgment: 03 Februa ry 2025