2 1 The first and second applicants are the first and second defendants,
respectively, in an action that was instituted against them by the respondent
on 23 September 2018. I will hereafter refer to the parties as in the action.
2 In the combined summons, the plaintiff claim s R2 392 779.51 plus mora
interest from the first defendant under a construction agreement for work done
and material supplied on three projects during 2016 and 2017 . The plaintiff
claim s the same amount from the second defendant in terms of a suretyship
agreement that is incorporated into the construction agreement .
3 The defendants delivered a notice of intention to defend on 11 October 2018 .
They subsequently filed an affidavit resisting summary judgment on
13 November 2018 , after the plaintiff had applied for summary judgment .
4 After the filing of the affidavit resisting summary judgment, the plaintiff elected
not to proceed with the application for summary judgment . Instead , it called
upon the defendants to deliver their plea.
5 When the defendants failed to do so timeously, the plaintiff delivered a notice
of bar on 14 December 2018.
6 On 21 January 2019, instead delivering an exception or a plea, the defendants
delivered a notice to remove cause of complaint in terms of Rule 23(1).
Because a notice to remove cause of complaint in terms of Rule 23(1) is not
a pleading that interrupt s the dies induciae for a notic e of bar, the plaintiff
responded by delivering a notice of irregular step in terms of Rule 30.
3 7 Opposed interlocutory proceedings then followed which culminated in this
court, per Acting Justice Malungana, granting an order on 17 April 2023 (“the
Order ”) in inter alia the following terms:
“1. …
2. …
3. The First and Second Respondents’ Uniform Rule of Court 23(1)
Notice dated 23 January 2019, is hereby set aside as constituting
an Irregular Proceeding.
4. …
5. The First and Second Respondents are afforded until 13h00 on
08 May 2023, to serve, file and electronically upload their
application for condonation and for their launching of an application
to uplift the Applicant’s Notice of Bar (‘the forthcoming application’).
6. In the event of the Respondents failing to comply with paragraph 5
hereof, then and in such event, the Applicant will be entitled to enrol
the main action and to apply for default judgment in the main action,
together with interest and legal costs.
7. The First and Second Respondents are ipso facto barred from
entering a Plea in the Main Action, unless and until they procure an
order:
7.1. granting both Respondents condonation for the forthcoming
application whereby the First and Second Respondents wish
4 to have the Notice of Bar against them, belatedly uplifted;
and
7.2. granting both Respondents relief to the extent of this
Honourable Court uplifting the Notice of Bar, after
determining the forthcoming application.
8. …”
8 The application I must determine is the application that was envisaged in
paragraphs 5 and 7 of the Order .
9 The defendants launched the application on 8 May 2023.
10 The application is opposed by the plaintiff.
11 The plaintiff contends, in limine , that the application should be dismissed
because of the failure by the defendants to comply with the Order . In particular,
the plaintiff contends that the Order imposes a double obligation on the
defendants, namely :
11.1 to apply for condonation for the late launching of the application to
uplift the bar; and
11.2 to apply for the uplifting of the bar.
12 The plaintiff contends that the defendants have not in the current application
applied for condonation for the late launching of the application to uplift the
bar at all .
5 13 The plaintiff contends, in the alternative , that the defendants’ application to
uplift the bar is bad, and should be refused.
Point in limine
14 It is clear that the Order requires that the defendants must both apply for
condonation for the late launching of the application to uplift the bar and apply
to uplift the bar. Paragraph 5 read with paragraph 7 of the Order are
unequivocal in this regard .
15 It is also clear from paragraph 7 of the Order that the consequence of not
obtaining condonation for the late launching of the application (and an order
uplifting the bar) is that the defendants will remain barred from pleading . The
terms of the Order dictate that the defendants “ are ipso facto barred from
entering a Plea in the Main Action, unless and until they procure [such] an
order ”.
16 The plaintiff is also correct that the defendants have not applied for
condonation for the late launching of the application.
17 There is, firstly, no prayer for that relief in the notice of motion. The relief
sought in the notice of motion is as follows:
“1. That the Notice of Bar served on the Applicant be uplifted.
2. That the Applicant be allowed to file a Plea within 20 (twenty ) business
days after the date of this order and which service is condoned ”
18 Moreover, even if the notice of motion were to be generously interpreted to
imply an application for condonation for the late bringing of the application , no
6 case for condonation is made out in the founding affidavit for such relief . An
application for condonatio n for the belated launching of the application is not
made out in the founding affidavit, and the usual factors a court must consider1
are not addressed.
19 The application is therefore liable to be dismissed for this reason alone.
Application to uplift the bar
20 Importantly, even if I were wrong in reaching the above conclusion, the
defendant s’ application falls to be dismissed for the separate reason that the
defendant s have failed to make out a proper application for the uplifting of the
bar.
21 The approach to determining whether a bar should be lifted , which has been
applied by the courts for over five decades, was set out in Smith NO v
Brummer NO and Another 1954 (3) SA 352 (O), at 357H –358B.
22 The following is the English translation of the ratio of that case that is contained
in the headnote:
“In an application for the removal of bar the Court has a wide discretion
which it will exercise in accordance with the circumstances of each case.
The tendency of the Court is to grant such an application where (a) the
applicant has given a reasonable exp lanation of his delay; (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
1 See Ekurhuleni City v Rohlandt Holdings CC and Others 2025 (1) SA 1 (CC) par 25-26
7 disregard of the Rules of Court; (d) the applicant’s action is clearly not ill -
founded and (e) any prejudice caused to the opposite party could be
compensated for by an appropriate order as to costs. The a bsence of
one or more of these circumstances might result in the application being
refused. ”
23 More recently, i n Ingosstrakh v Global Aviation Investments (Pty) Ltd and
Others 2021 (6) SA 352 (SCA), the Supreme Court of Appeal set out the
following principles when considering whether the defendants who had
become barred from pleading, should be granted condonation to file its plea
in terms of Rule 27:
“Rule 27 of the Uniform Rules deals with the extension of time, removal
of bar and condonation. In terms of rule 27(3) the court may, on good
cause shown, condone any non -compliance with the rules. … Generally,
the concept of ‘good cause’ entails a conside ration of the following
factors: a reasonable and acceptable explanation for the default; a
demonstration that a party is acting bona fide; and that such party has a
bona fide defence which prima facie has some prospect of success.
Good cause requires a full explanation of the default so that the court
may assess the explanation. ”2
24 The SCA did so without referring to , or overruling, the decision in Smith NO v
Brummer . The approach set out in the earlier decision of Smith NO v Brummer
2 Ingosstrakh par 20
8 remains sound , and may be applied in conjunction with the S CA’s decision in
Ingosstrakh .
25 Common to the approach in both decisions is the requirement that there be a
proper explanation for the default. It is now trite that such explanation must be
sufficiently full for the court to properly assess the reasonableness of the delay
or default.
26 It is also common to the approach of the above two courts, although differently
expressed, that the court must be satisfied that the claim or defence is bona
fide and has some prospect of success.
27 In the current application, however, the defendants have failed to satisfy both
of these requirements.
28 The defendants’ explanation is neither full nor sufficiently detailed for the court
to assess the reasonableness of the defendants’ default, or the defendant ’s
conduct and motives. The defendants provide only a bland and superficial
explanation for their default . They effectively blame on their erstwhile attorney
for failing to advise them properly.
29 What makes this explanation unsatisfactory is that the defendants did not have
only one previous attorney, but two. There is no detail given of what attorney
gave them poor advice, when that advice was given, and why it is that they
continued to labour under that poor advice notwithstanding the change of
attorneys.
30 The defendants’ poor explanation is followed by the defendants’ failure to
make any effort to satisfy the court that the y have a defence that is bona fide
9 and bears some prospect of success. No case is made out in the founding
affidavit in this regard at all.
31 To make matters worse, when the plaintiff in its answering affidavit dealt with
the merits of the plaintiff’s claim and pertinently alleged that the defendants
had no prospect of successfully defend ing the claim, the defendants failed to
provide any satisfactory answer to those allegations in reply.
32 The only answer given by the defendants was that the plaintiff had not
persisted with its application for summary judgment in November 2019 after
the delivery of the def endants ’ affidavit resisting summary judgment . But this
bald response does not assist t he court. It does not pertinently address the
substance of the plaintiffs ’ answering affidavit concerning its case , or show
that the defendants in fact have any prospect of success in defending the
plaintiff’s claims.
33 The poor explanation given by the defendants, and the failure to make out any
case that they have prospects of success in defending the matter, comes in
the context of a long history of litigation in which the defendants have
repeatedly conducted themselves in a dilatory fashion. The patently
unmeritorious current application follows that pattern.
34 In the circumstances, the defendants have failed to provide a full explanation
for the delay . They have also failed to satisfy the court that the ir application is
bona fide and that the ir defence to the plaintiff’s claims bears any prospects
of success. In my view, this is sufficient to warrant this cour t exercising its
discretion against uplifting the bar.