2
H M VILJOEN A J
INTRODUCTION
[1] In this case, five applications arising from an action by the plaintiff, Kansai
Plascon, against the defendants, Redec Services (Pty) Ltd, Engelbrecht, and
Assness are before me. Kansai Plascon's claim originates from a credit facility granted to Redec Services (Pty) Ltd, secured by unlimited suretyships from Engelbrecht and Assness.
[2] The applicatio ns before me are:
2.1. Summary judgment by Kansai Plascon,
2.2. Condonation for late filing of summary judgment by Kansai Plascon,
2.3. Striking out of the d efendants' defence based on non-compliance with
court order by Kansai Plascon,
2.4. First application for leave to amend plea by the defendants, and
2.5. Second application for leave to amend plea by defendants .
[3] The striking out application is potentially dispositive of the entire matter, as its
success would render the remaining applications moot. If the defendants ’
defence is struck, judgment would likely follow in favour of Kansai Plascon, effectively achieving the same outcome as a successful summary judgment application. Therefore, I will begin by considering this application.
3
THE STRIKING OUT OF A DEFENCE: GENERAL PRINCIPLES
[4] A court possesses inherent jurisdiction to safeguard the integrity of its
process.1 It is well-established that the court has the power to strike out a
claim or defence in the e xercise of this jurisdiction. The exercise of this drastic
power is discretionary. This discretion must be exercised judicially but is not
limited to instances of contumacy.2 The exercise of this discretion is fact
specific.3
[5] The court’s general power to strike out is expressly embodied in several rules
of court, both of general and of specific application. Examples are Rule 21(4),
35(7) and 30A. T hese Rules provide remedies for non-compliance with rules,
requests, notices, or directions.
[6] The Practice Manual of this Division in force during May 2022 precluded the
set down of an opposed application until all parties thereto had filed heads of argument.
[7] Recognising that t his requirement left one party at the mercy of the other , the
Practice Manual afforded a compliant party a remedy to compel the non-
compliant party to file heads of argument. The remedy is cast in the mould of Rule 35(7). Paragraph 9.8.2(12) entitled the compliant party could enrol the matter provisionally whilst simultaneously applying for an order directing the non-compliant party to file heads of argument within 3 days of such order.
1 Millu v City of Johannesburg Metropolitan Municipality and another 2024 JDR 1329 (GJ) at
[17]
2 at 280C
3 Millu supra at [23]
4
Failing compliance, the defaulting party’s claim or defence could upon
application be struck out.
Case Law
[8] Three cases illustrate the courts’ approach to applications to strike out
aberrant litigant’s claims or defences: The Wanson Company of South Africa
(Pty) Ltd v Establissements Wanson Construction de Material Thermieque
Societe Anonyme,4 Leask v East Cape Forest (Pty) Ltd,5 and Millu v City of
Johannesburg Metropolitan Municipality and another .6
[9] Across these cases, courts consider factors such as the gravity of the non-
compliance, reasons for non-compliance, prejudice to the parties, interests of justice, and contumacy when deciding whether to strike out a defence.
[10] Millu concerns non-compliance with the same provisions of the Practice
Manual as raised in this matter. Therein, the defendant, the City of
Johannesburg, displayed a pattern of delay and non-compliance. The Deputy Judge President of this Division had occasion to remark:
“In this case, however, in my view, the only reasonable inference to draw from the
facts is that there has been an egregious contempt of an order of this court. Moreover,
a contempt which is calculated not only to stimy [sic] the adversary by inordinate delay,
but also constitutes an abuse of the court process. Delay has characterised the City’s
conduct from the beginning of the litigation. In particular, the elapse of a period of over 5 months in the face of an order court to file the heads of argument and still not file
the heads is especially egregious. Moreover, there is no explanation and, in particular,
4 1976 (1) SA 275 (T)
5 2008 JDR 1316 (E)
6 2024 JDR 1329 (GJ)
5
no condonation application, nor, indeed, even the tender of a condonation application
in regard to the non -compliance with the order of court. ”7
And
“It is argued that a strike out of the defence is inappropriate because the opportunity
existed for the applicant to set down the matter on the opposed motion roll in the
absence of the City’s heads of argument. The intellectual premise for this contention
is obscure. It ignores the fact of non -compliance with an order of the court. This
argument of the City, as do the o ther contentions dealt with hereafter, wholly fails to
grasp the gravity of the manifest defiance of the court order. In this case the critical
issue is not a mere failure to comply, it is the pernicious expectation of impunity with which the City has defied the order of court.”
8
THE DEFENDANTS ’ CONDUCT
[11] The defendants' conduct in this litigation has been marked by a persistent
pattern of dilatoriness, as evidenced by the following chronology.
[12] After being served with summons in October 2020, the defendants filed a
notice of intention to defend on 6 November 2020. Following a notice of bar
on 18 February 2021, the defendan ts raised an exception to the particulars of
claim as disclosing no cause of action on 26 February 2021. The exception
was a day late. It precipitated an amendment to the particulars of claim. A
second notice of bar, dated 5 July 2021, was required before the defendants'
plea was served on 13 July 2021, again a date late. Although Kansai Plascon
in both instances opted not to assert that the defendants were ipso facto
barred, the defend ants’ tardiness foreshadowed their subsequent conduct.
7 At [16]
8 At [19]
6
[13] On 10 September 2021, Kansai Plascon launched an application for summary
judgment and, and some weeks thereafter, an application for condonation for
the late filing of the summary judgment application. The condonation
application explains that the delay was the result of Kansai Plascon’s attorney,
Mr Kane, suffering post-Covid-19 complications, resulting in him being
incapacitated until 16 August 2021. Significantly, Mr Kane attempted to reach an agreement with the defendants ’ attorney to avoid the need for th e
condonation application. However, despite several follow-up emails by the
former, the latter never provided a definitive response to the request.
[14] The defendants did not immediately oppose either the application for summary
judgment or the application for condonation . The applications were set down
on the unopposed roll of 27 January 2022 . The defendants received
notification of the set down on 15 October 2021. However, they maintained
silence. Only on 11 January 2022 did they file an answering affidavit to the
condonation application. They offered no answer to the summary judgment application, n or did they explain their failure to engage with its merits. There
was no indication that they intended amending their plea. The result of the
belated answering affidavit was that the applications for summary judgment and condonation were removed from the roll.
[15] It was suggested by the defendants in argument that the removal of the matter
from the roll was because the parties had not agreed on the simultaneous hearing of the applications. It was, so it was argued, the defendants’ position
that the condonation applica tion should be finalised before they answered to
the summary judgment application. I could find no contention anywhere in the
7
papers that the defendants contemplated separate hearings of these
applications. It appears to be an afterthought designed to explain the
defendants ’ failure to set out a defence to the s ummary judgment application.
[16] Be that as it may, enrolling the applications on the opposed roll, required, in
terms of the provisions of the Practice Manual of this Division in force at the time, head s of argument from both parties. Kansai Plascon filed theirs on 30
May 2022. The defendants never filed any .
[17] Consequently, Kansai Plascon obtained a court order on 7 September 2022,
compelling the defendants to file heads of argument within three days. This
order was granted on an unopposed basis. In a blatant disregard for the court’s authority, the defendants failed to comply with the order.
[18] The d efendants' counsel argued that their intention to amend their plea,
communicated in a notice filed on 21 September 2022, justified their non-compliance, suggesting that the order had been overtaken by the proposed amendment. A party cannot unilaterally undo a court order, except when abandoning an order, they themselves obtained. Compliance was the
defendants ’ only acceptable response to the court order.
[19] In additio n, the defendants' justification is contradictory. If they insisted on
separating the condonation application from the summary judgment application, requesting that the former be heard first , the y ought to have
complied with the order at least to the extent of addressing the condonation
application. Their subsequent attempt to use a proposed amendment to their plea as justification for not filing heads of argument at all is therefore illogical
and disingenuous.
8
[20] The plaintiff filed updated heads of argument in August 2024 and a draft
practice note in January 2025; the defendants delayed filing their practice note
and heads of argument until just days before the hearing. Their heads of
argument focused solely on their applications to amend, requesting a postponement of all the other applications, including the crucial application to
strike out their defence. (The defendants' heads of argument, eventually filed
on 27 January 2025, did not address the striking out application at all.)
[21] To my mind, th e probabilities favour the inference that the defendants are
engaged in a deliberate attempt to manipulate the court process for their own
advantage. Their conduct has not only prejudiced the plaintiff by causing significant delays and increasing costs but has also undermined the efficient administration of justice and the authority of the court.
APPLYING THE FACTS TO THE PRINCIPLES
[22] To assess the appropriateness of striking out the defendants' defence in this
case, we need to apply the principles from Millu v City of Johannesburg Metropolitan Municipality to the facts at hand.
Gravity of Non -Compliance:
[23] The defendants' non-compliance is not merely persistent but also significant
in its nature. Their repeated failure to meet deadlines, including the late filing of their plea and their failure timeously to file heads of argument, demonstrates
a disregard for the court's timelines and the efficient administration of justice. More seriously, they have ignored a court order to file heads of argument, disrupting the orderly progression of the case and show ing disrespect for the
9
court's authority. Their last-minute attempts to amend their plea, instead of
complying with court orders and addressing the merits of the case, further
demonstrate a deliberate strategy to hinder the proceedings. This pattern of non-compliance has significantly delayed the adjudication of this matter, causing substantial prejudice to the plaintiff and wasting valuable court resources.
Reasons for Non-Compliance
[24] The defendants have offered no compelling explanation for their persistent
non-compliance. Their attempt to justify their failure to file heads of argument based on their intention to amend their plea is unconvincing. This argument is fundamentally flawed, as the proposed amendment is irrelevant to the defendants' obligation to comply with the court order. Furthermore, their sudden desire to amend, with no prior indication of this intention in their earlier answering affidavit or any attempt to bring this to the attention of the court
hearing the application to compel, raises serious questions about their motives. It suggests an opportunistic attempt to avoid the consequences of their non-compliance rather than a genuine need to revise their pleadings. In
truth, the defendants have not taken a single proactive step to bring the matter to finalisation, leaving even the enrolment of their applications to amend to the
initiative of the plaintiff.
[25] The defendants have not demonstrated any remorse for their conduct or taken
any steps to rectify the situation, such as applying for condonation. Their actions suggest a deliberate strategy of delay and avoidance rather than a genuine attempt to engage with the merits of the case.
10
[26] The defendants argue that the plaintiff contributed to the delays in the
proceedings. They point to instances where the plaintiff objected to their
proposed amendments only on the last day of the allowed period and periods where the plaintiff was allegedly inactiv e. Whilst it cannot be gainsaid that the
plaintiff could arguably have acted more expeditiously in certain respects, this argument does not excuse the defendants' own failures to comply with court orders and rules. The plaintiff's conduct, even if it contributed to some delays, does not relieve the defendants of their obligation to comply with the court's instructions. Furthermore, the defendants have not provided any specific evidence to support their insinuation that the plaintiff's actions were
deliberately dilatory or intended to obstruct the proceedings.
Prejudice to the Plaintiff:
[27] The defendants' non-compliance has caused significant prejudice to the
plaintiff. The delays have resulted in increased costs and prevented the plaintiff from obtaining a timely resolution of the dispute. The plaintiff could
rightfully feel that its confidence in the judicial process is undermined.
Interests of Justice:
[28] Striking out the defence would serve the broader interests of justice. It would
promote fairness by ensuring that the plaintiff is not further prejudiced by the defendants' dilatory tactics. It would uphold the integrity of the court process by demonstrating that non-compliance with court orders and rules will have consequences. It would also deter similar dilatory tactics in the future, encouraging litigants to engage meaningfully with the legal process and respect the court's authority. Furthermore, striking out the defence would bring
11
this protracted litigation to a timely conclusion, promoting the principle of
finality in legal disputes.
Adequacy of Respondent's Engagement:
[29] The defendants have not engaged meaningfully with the plaintiff's case.
Instead of addressing the plaintiff's application for summary judgment, they focused solely on procedural manoeuvres and last-minute attempts to amend
their plea. They have consistently avoided engaging with the merits of the dispute, suggesting an intention to evade accountability and delay the proceedings. Their conduct throughout this litigation demonstrates a lack o f
respect for the court process and a disregard for the plaintiff's rights."
[30] Considering all these factors, the defendants' conduct aligns with the type of
behaviour that the court condemned in Millu.
CONCLUSION
[31] Considering the defendants' persistent non-compliance, their lack of
reasonable explanation, the prejudice caused to the plaintiff , and the need to
uphold the integrity of the court process, I find that striking out their defence is the appropriate remedy. This action is consistent with the principles of fairness, efficiency, and the integrity of the judicial process.
13
Date of hearing: 3 February 2025 Date of judgment: 18 February 2025
Appearances: Attorneys for the plaintiff : AD Hertzberg Attorneys
Counsel for the plaintiff : Adv. L Hollander
Attorneys for the defendants : Darryl Furman & Associates
Counsel for the defendants : Adv. N Riley