1 IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number:2022/027021
In the matter between:
NEDBANK LIMITED Plaintiff / Applicant
and MBULELO SIMON NTSHANGASE Defendant / Respondent
JUDGMENT
STYLIANOU, AJ :
1. This is an application for summary judgment wherein the applicant (“the plaintiff”)
seeks summary judgment against the respondent (“the defendant”).
2. The parties have agreed that the summary judgment application should be
postponed as it is not ripe for hearing.
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
Date: 19 March 2025 Signature:
2 3. In essence, the summary judgment application cannot proceed because a
condonation application brought by the plaintiff for the late-filing of its application
for summary judgment, is not ready to be heard.
4. Unfortunately, the parties c annot agree on who should pay the wasted costs
occasioned by the postponement.
5. The matter was allocated to the opposed motion roll for the week of 10 March 2025,
however, the court file was not accessible on CaseLines until shortly before the
commencement of the motion week. This notwithstanding, the matter was allocated for hearing once it became available on CaseLines.
6. Mr Cohen, who appeared for the defendant maintained that the wasted costs
occasioned by the postponement should be borne by the plaintiff .
7. Mr Cohen submitted that it was due to the plaintiff ’s conduct that the matter was
not ripe for hearing, specifically:
7.1. that the summary judgment application was out of time, and that the
condonation application that the plaintiff was required to bring had not
been finalised before the summary judgment application was enrolled;
and
7.2. that the matter had not been properly loaded onto CaseLines as required
by this Court’s practice; and
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7.3. that the plaintiff did not call for a pre-hearing conference for the purposes
of drawing up a joint practice note.
8. The defendant maintains that for all these reasons, the matter could not proceed
and the wasted costs of the postponement should be borne by the plaintiff.
The Condonation Application
9. The plaintiff concedes that it issued its application for summary judgment outside
the time-period specified in Rule 32 of the Uniform Rules of Court.
10. On 25 April 2024, the plaintiff filed an application for condonation for the late
delivery of its application for summary judgment.
11. Some nine months later (on 17 January 2025) the plaintiff filed a notice of set down
of the summary judgment application for the week of 10 March 2025. At this stage
of the proceedings, there was no notice of opposition or answering affidavit to the
condonation application.
12. The notice of opposition to the condonation application was only filed on 17
February 2025 almost ten months after the condonation application was filed.
13. The answering affidavit was thereafter filed by the defendant on 19 February 2025.
4 14. A replying affidavit was filed by the plaintiff on 5 March 2025 – a few days before
the summary judgment was due to be heard.
15. From the above time-line, it seems clear that the filing of the notice to oppose and
the answering affidavit to the condonation application so close to the hearing date
of the summary judgment application was the reason why the matter was not ripe
for hearing.
16. In seeking to address this issue, the defendant relied upon Rule 6(11) which
provides:
(11) Notwithstanding the aforegoing subrules, interlocutory and other
applications incidental to pending proceedings may be brought on notice
supported by such affidavits as the case may require and set down at a
time assigned by the registrar or as directed by a judge.
17. The defendant submits that the time periods for the exchange of affidavits set out
in Rule 6(5) do not apply to interlocutory applications (such as the condonation application) and that the defendant could not be criticised for only filing its
answering affidavit some ten months after the condonation application had been
launched.
18. In the matter of Gisman Mining and Engineering Co (Pty) Ltd (in liquidation) v
LTA Earthworks (Pty) Ltd 1977 (4) SA 25 (W), McEwan J said at 27H – 28 A as
follows:
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“It does seem to me, however, that, whatever the correct reading of Rule
6 (11) may be, it cannot mean that in an interlocutory matter the applicant
has unlimited time to file a replying affidavit. If the correct position is that
there is no Rule defining exactly the time within which affidavits must be
filed, then in my view the Rule should at least be read to mean that they
must be filed within a reasonable time. prima facie, in my view, a
reasonable time would certainly not be longer than the time prescribed
in terms of Rule 6 (5) (e), unless there were some special circumstances
applying.
19. Erasmus, Superior Court Practice at p.6-50 says:
“The provisions of the rules relating to the time for filing answering and
replying affidavits do not apply to interlocutory applications. Further
affidavits in interlocutory applications must be filed within a reasonable time; prima facie in the absence of special circumstances, this would not
be longer than the times prescribed in terms of rule 6(5).”
20. Hence, whereas there are indeed no time periods specified in rule 6(11) for the
exchange of affidavits in interlocutory applications, it does not mean that a litigant
can sit back indefinitely before it decides whether to oppose and whether to file an answering affidavit. Clearly, ten months is an unreasonable period.
6 21. Mr Cohen further argued that the plaintiff should have enrolled the condonation
application on the interlocutory roll before the summary judgment application was
set down. The defendant argued that it was the failure to do this that has necessitated the postponement of the summary judgment application.
22. Presumably, had the plaintiff sought to have the condonation application heard
earlier, the defendant would have been compelled to act sooner and would not
have waited so long to file its answering affidavit. Had condonation been granted, it would have meant that the summary judgment application could have gone ahead without hindrance.
23. Mr McTurk, who appeared for the plaintiff, submitted that it was preferable for the
condonation application to be heard at the same time as the summary judgment application and not separately beforehand . He submitted that the condonation
application and the summary judgment application could conveniently be heard and considered together since, in considering whether to grant condonation, one
of the factors that a Court takes into account must be the plaintiff’s prospects of
success. (See: Federated Employers Fire & General Insurance Company
Limited & another v McKenzie 1969 (3) SA 360 (A) at 362F–G.)
24. This would involve an analysis of the defence raised by the defendant and whether
it disclosed a bona fide defence. There would be an inverse relationship between
the plaintiff’s prospects of success and the defendant’s bona fide defence. The
better the defendant’s defence, the worse the plaintiff’s prospects of success on
summary judgment and vice versa. If the court hearing the condonation application
finds that no bona fide defence is made out, it may be more inclined to grant
7 condonation – which would mean that a subsequent court (the summary judgment
court) would reconsider the question of whether a bona fide defence is made out
by the defendant .
25. Of course, if a bona fide defence is made out, the court hearing the condonation
application would in all likelihood refuse to condone the late-filing of the summary
judgment application and the summary judgment application would end there.
26. There is therefore some merit in Mr McTurk’s submission that i t would be
convenient for one Court to consider both the condonation application and the
summary judgment application. However, one should not discount the influence that the other elements of a condonation application (such as the reason for the default) would have on the granting of such an application. Condonation obviously does not depend solely upon the prospects of success.
27. Having said that, there is also merit to Mr Cohen’s submission that the condonation
application (with all its constituent elements) should be heard first and that the
plaintiff was remiss in not seeking to enrol it earlier.
28. It seems to me that the parties are equally to blame for not ensuring that the
condonation application was either disposed of beforehand, or ready to be heard
together with the summary judgment application.
Was the matter loaded onto CaseLines?
29. The defendant maintains that the matter was not loaded onto CaseLines and
accordingly, the matter was not ripe for hearing.
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30. During argument, counsel for the defendant demonstrated to the Court, by directing
the Court to interrogate the “Audit” function on the CaseLines platform, that the file
in this matter was created on CaseLines on 21 April 2023 at 10:27.
31. In the absence of expert testimony on how CaseLines works and how files are
“pulled through” from the “Court Online” system to the CaseLines system, I am not
prepared to make a finding on whether or not the matter was created in 2023 and
whose fault it was that it could not be found on CaseLines at the time that the Court
was allocating its matters for hearing.
32. Nothing further need be said about this issue.
There was no Joint Practice Note
33. The defendant also complains that the plaintiff did not call for a conference to draw
up a joint practice note.
34. This was denied by the plaintiff who referred to correspondence dated 19 June
2024 loaded onto CaseLines wherein the defendant’s attorneys were invited to
comment on a proposed joint practice note. The response from the defendant’s
attorneys was that they did not agree to the draft joint practice note, which they
deemed to be premature in any event.
9 35. A further letter from the plaintiff’s attorneys dated 13 September 2024 called for
three dates convenient to the defendant’s attorneys to hold a formal pre-trial
conference. There was no response to this letter.
36. There can therefore be no criticism of the plaintiff for absence of a joint practice
note.
37. Ultimately, the matter was not ripe for hearing because the condonation application
was not ready to be heard. There had been no time for the filing of heads or
argument on the opposed condonation application.
38. As I indicate above, I am of the view that the parties are equally to blame for this
and accordingly, there should be no order as to costs.
39. In the circumstances, I order as follows:
a. The summary judgment application is postponed sine die, no or der as to
costs.
___ ____________
X STYLIANOU, AJ
Acting Judge of the Hight Court
10 Heard: 12 March 2025
Judgment delivered: 19 March 2025
Appearances:
For Applicant: Adv RG Cohen Instructed by: Glynnis Cohen Attorneys
For Respondents: Adv S McTurk
Instructed by: UMS Attorneys