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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2017/49814
In the matter between:
In the matter between:
TIISETSO WILLIAM MOKITIMI APPLICANT
and
STANDARD BANK OF SOUTH AFRICA
LIMITED RESPONDENT
JUDGMENT
NOKO , J
Introduction (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
SIGNATURE
DATE: 6 March 2025
2
[1] The applicant, Tiisetso Willam Mokitimi, instituted proceedings in terms of rule
30 of the Uniform Rules of Court (“ the rules”) against the respondent for an order
striking out the summons, on the basis of the following reasons : failure to comply
with rule 28(7) of the rules; fail ure to furnish the applicant with statements showing
payments effected by the applicant ; and imposing an agreement stating that the
property in dispute is Erf 5[…] V[…] S[…] E[…] […] whereas he purchased Erf 5 […]
V[…] S[…] W[…] […].
[2] The respondent opposes the application and raises, inter alia , the following
contentions : the applicant failed to comply with the provisi ons of the rules which
enjoined him to first deliver a notice calling upon the respondent to remove cause of complaint.
Background
[3] The respondent instituted civil proceedings against the applicant for the
cancellation of a loan agreement, judgment for the amount, which was due and
subsequently , an order to declare the property executable. The respondent set down
the matter for summary judgment which was refused and leave to defend was granted.
[4] The respondent noted that there was an error in the description of the
property in the loan agreement which was described as Erf 5[…] V[…] S[…] E[…]
[…] instead of Erf 5[…] V[…] S[…] W[…] […]. The respondent delivered notice of
intention to amend which was unsuccessfully opposed by the applicant. The
application served before Siwendu J who granted the leave to amend on 24 June 2021. The respondent delivered the amended pages on 7 July 2021.
Submissions
Point in limine
[5] The respondent contends that the applicant failed to comply with the rules as
the notice in terms of rule 30 should have been preceded by the notice calling upon
the respondent first to remove the cause of complaint. This is in terms of rule 30
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(2)(b) which provides that “ [a]pplication in terms of subrule (1) shall be on notice to
all parties specifying particulars of the irregularity or impropriety alleged, and may be
made only if – (b) the applicant has, within 10 days of becoming aware of the step,
by written notice afforded his opponent an opportunity of removing the cause of
complaint within 10 days ”. To this end, the respondent contends that the application
should be dismissed with costs.
[6] The applicant persisted and read for the record the notice in terms of rule 30
which he contends is compliant with the rules.
[7] I had regard to the notices filed by the applicant in terms of rule 30A and in
contrast to r ule 30, there is no requirement that the respondent should first be given
an opportunity to cure the complaint prior serving the rule 30A notice.1 To this end, it
appears that the point is meritless and bound to be dismissed. In any event the
applicant served the rule 30A (1) which relays the intention to approach court to
strike out the claim or the defence. The applicant thereafter proceeded with rule 30A
(2).
Merits
[8] The applicant contends that the judgment by Siwendu J was delivered on 24
June 2021 which granted the respondent leave to amend its papers. The respondent
had a period of 10 days to serve and file amended pages but failed to so. In his
understanding, the respondent should have therefore first asked for condonation for
the late filing of the amended pages without which the respondent is not entitled to
any audience.
[9] In retort, the respondent correctly stated that rule 1 of the rules defines days
to mean court days or business days. It therefore implies that on a proper calculation
filing the amended pages on 7 July 2020 was within 10 days having considered court
days as defined. Further , that the amended pages were in fact filed before the expiry
1 In any event the respondent did not serve notice to remove the cause of complaint in relation
to failure by the applicant to comply with the rules.
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of the required 10 days. To this end, I find that the contention by the applicant is
unsustainable.
[10] The applicant further argued that a request was made to the respondent to
make available proof of all payments which were made to the respondent to no avail.
In retort , the respondent argued that this point is unsustainable because rule 30A is
only implicated only where a party can demonstrate that there has been a failure to
comply with the rules or court order. The applicant’s papers are silent regarding
which rule has been breached and the relief sought is therefore incompetent.2
[11] The applicant further contended that there has been changes with regard to
the property which he acquired, and the amendment thereof should not be
entertained. The respondent contended that this was the issue which was argued
before Siwendu J who delivered a judgment thereon. This Court, so the argument
continued and correctly so, cannot be required in terms of rule 30A to be a court of
appeal or review to reconsider what has already been decided upon by Siwendu J.
[12] The applicant’s further argument to support the relief sought in terms of rule
30 related to the argument that the lis instituted by the respondent was premature as
the matter was before a credit regulator for adjudication. The respondent correctly
argued that this point relates more to the merits of the pending litigation and cannot
be raised in terms of rule 30 as no reference is made to any rule that has been
disregarded.
[13] It appears that the route followed by the applicant was ill -conceived as the
arguments
3 could not sustain the invocation of r ule 30A. Though he was correct in
referring to r ule 28(7) , his argument failed as his calculation of days appear s not to
be consistent with definitions of days as contemplated in the rules.
[14] In conclusion, the application is unsustainable and falls to be dismissed.
2 Rule 35 provides for the discovery and inspection of documents if a party requires such
documents in the possession of a party which are needed for trial.
3 His other arguments related to the fact that the subject matter of the lis is before Credit
Regulator and further having accused the respondent of having engaged in reckless lending
which are issues to be left for trial and not be taken up on terms of rule 30A.
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Costs
[15] There are no reasons to unsettle the principle that the costs should follow the
results.
Order
[16] In the premise, the following order is made:
a. The application is dismissed with costs .
M V NOKO
JUDGE OF THE HIGH COURT ,
GAUTENG DIVISION, JOHANNESBURG .
Dates
Hearing: 21 November 2024
Judgment: 6 March 2025.
Appearances:
For the Applicant: Mr Mokitimi
Instructed by: In Person.
For the Respondent: Mr Raubenheimer
Instructed by Le Roux Vivier Attorney