IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT )
NOT REPORTABLE
CASE NO. EL 1130/2013
In the matter between:
ABSA BANK Applicant/ Plaintiff
and
GARY MURRAY Respondent/ Defendant
And
INTUITIVE PDA (PTY) LTD Third party
JUDGMENT IN RESPECT OF APPLICATION
IN TERMS OF RULE 30 (1)
HARTLE J
[1] The plaintiff (applicant in the interlocutory application) applies in terms of
uniform rule 30 (1) to set aside as an irregular or improper step the defendant’s
delivery of an amendment to his plea by reason of the fact that the defendant filed it
without complying with the provisions of Uniform Rule 28 , and by further reason that
it purports to withdr aw admissions made in his initial plea and in pre -trial procedures
without any explanation therefor . That is the offence and claimed prejudice to the
plaintiff.
[2] The defendant’s delivery of the amended plea dated 20 September 2023 ,
without compliance with the provisions of the rule or any application asking for the
amendment vouched for by an affidavit explaining the withdrawal of prior
admissions, prompted the plaintiff’s resort to the present interlocutory application.
[3] The defendant denies that the step taken was improper or irregular, justifying
it instead with reference to an order of this court issued on the occasion of the set
down of the action for trial on 31 August 2023 (“the Order ”) pursuant to an
application contemporaneously initiated at his instance for a postponement of th e
hearing on that date.
[4] The Order reads as follows:
“1. The matter is postponed to 29th and 30th November 202 3.
2. The Defendant is to effect any amendments by no later than 20
September 2023 .
3. Any response or consequential amendments are to be filed within 20
(twenty) days thereafter .
4. The Defendant is ordered to pay the costs occasioned by the
postponement on a scale as between attorney and client.” 1
1 The court did not involve itself in the details of the timeframes or minutiae of what was to ensu e
between the date of its order and the next tri al date, which was agreed between the parties at its
prompting , but was certainly inclined to order a postponement in principle for the various reasons
suggested by the defendant in his application therefor . This was more than evident from the
transcript of the p roceedings of 31 August 2023 that was put up by the plaintiff in its answering
affidavit. The costs order also followed in accordance with the defendant’s tender.
[5] It is useful to begin with an excerpt from the provisions of Rule 28 that
prescribe how amendments to pleadings and documents ought in the ordinary
course to be brought about:
“28 Amendments to pleadings and documents
(1) Any party desiring to amend any pleading or document other than a sworn
statement, filed in connection with any proceedings, shall notify all other
parties of his intention to amend and shall furnish particulars of the
amendment.
(2) The notice referred to in subrul e (1) shall state that unless written objection
to the proposed amendment is delivered within 10 days of delivery of the
notice, the amendment will be effected.
(3) An objection to a proposed amendment shall clearly and concisely state
the grounds upon whi ch the objection is founded.
(4) If an objection which complies with subrule (3) is delivered within the
period referred to in subrule (2), the party wishing to amend may, within 10
days, lodge an application for leave to amend.
(5) If no objection is deli vered as contemplated in subrule (4), every party who
received notice of the proposed amendment shall be deemed to have
consented to the amendment and the party who gave notice of the proposed
amendment may, within 10 days of the expiration of the period m entioned in
subrule (2), effect the amendment as contemplated in subrule (7).
(6) Unless the court otherwise directs, an amendment authorized by an order
of the court may not be effected later than 10 days after such authorization.
(7) Unless the court oth erwise directs, a party who is entitled to amend shall
effect the amendment by delivering each relevant page in its amended form.
(8) Any party affected by an amendment may, within 15 days after the
amendment has been effected or within such other period a s the court may
determine, make any consequential adjustment to the documents filed by him,
and may also take the steps contemplated in rules 23 and 30.
(9) A party giving notice of amendment in terms of subrule (1) shall, unless
the court otherwise direct s, be liable for the costs thereby occasioned to any
other party.
(10) The court may, notwithstanding anything to the contrary in this rule, at
any stage before judgment grant leave to amend any pleading or document
on such other terms as to costs or other matters as it deems fit. ”
[6] It is also necessary to advert to a related principle especially relied upon by
the plaintiff which is that an application for an amendment seeking to withdraw an
admission ought to be supported by an affidavit.2 The principle however qualifies the
form that a Rule 28 (4) application will take once an objection is delivered and the
requirement is only necessary in my view at the stage at which a party seeking to
make an amendment lodges an application for it on the b asis contemplated by Rule
28 (4).
[7] It is common cause that the defendant did not utilise the machinery of the
Rule to give notice of his intention to amend his plea, did not indicate the nature of
the proposed amendment he desired to make , neither did he invite the plaintiff’s
objection. He simply delivered his amend ed plea which , in its introduction , is
prefaced with the qualification that it was filed “in accordance with the order … dated
31 August 2023” .
[8] When it was brought to his attention by way of service of a notice in terms of
Rule 30 (2) (b) that his failure to have followed the ordinary route was objectionable
2 Swartz v Van der Walt t/a Sentraten 1998 (1) SA 53 (W) at 56 I – J and 57 A – C and G - J. Such an
amendment is considered be a “more substantial” one (57 A – B) hence the requirement that an
affidavit should accompany the notice of application to amend when such an application is initiated
upon delivery of an objection as provided for in Rule 28 (4).
to the plaintiff and he was advised to remove the cause of complaint ,3 the defendant
adopted the stance that the Order constituted his authorisation for the deliver y of the
amendment according to the method adopted by him. Otherwise put, he asserted
that the procedure which he had followed , instead of the steps directed by Rule 28,
was wholly consistent with the terms of the Order.
[9] Whilst acknowledging what is the norm, the defendant insisted in his
opposition to the present application that the plaintiff agreed to a deviation of what is
normally required by Rule 28 under the exig encies that applied at the time of the
hearing of the application for postponement and that such variation was therefore
valid and binding on the parties . Indeed the defendant asks this court to permit the
amendment (despite the plaintiff’s objection thereto) and to give leave to the plaintiff
to make any consequential amendments to his amended plea which , so the
defendant submits, it was in any event perm itted to do in accordance with prayer 3 of
the Order.
[10] It is not in contention that the application before court at the expected
commencement of the trial was not one for leave to amend but of a request by the
defendant for a postponement, the eventuality of which in itself was not anticipated
until the last minute before the trial was d ue to start.
[11] I was informed that t his was prompted under circumstances where the third
party discovered late and because Nedbank had produced volumes of paperwork
under a subpoena on the eve of the trial . The court at the time was advised that the
defendant was at a disadvantage because his legal representatives had not had an
opportunity to prepare adequately and significantly also because the pleadings did
not properly reflect his case. How the defendant was going to remedy that was only
vaguely intim ated to the court hearing the application for the postponement .
[12] The counterweight to the defendant’s predicament (and need for a
continuance) was that the plaintiff was manifestly prejudiced by its inability to have
3 The notice was not included in the papers neit her is it in the court file, but I was informed from the
Bar of its import and assured that its being given prior to the launch of the present application was not
in issue .
proceeded to finality with the trial despite it having been more than ready to run with
it. This i n essence was the backdrop against which the Order came to be made , in
part consensually between the parties,4 and otherwise driven by co ncerns which the
court had raised during argument regarding the competing interests of the parties if
the postponement was allowed versus if it was denied . It is abundantly plain , from a
transcript of those proceedings that was put up by the plaintiff in i ts answering
affidavit to the present application , that the court - whilst identifying that a
postponement was unavoidable , was mindful of finding a solution that both placated
the prejudice to the plaintiff by the fact of the hearing being delayed a nd provided the
defendant with an opportunity to correct his pleadings. The time frames and the
manner in which the parties ostens ibly agreed to remedy the fallout from the
postponement are self -evidently made provision for in the Order. It is against this
context that Mr . Smuts who appeared for the defendant invited this court to interpret
the order to mean that a truncated procedur e, rather than the one required by the
prescripts of Rule 28, had purposefully been put in place in order to ensure that by
the resumed date of the hearing ( 29 November 2023 ) the defendant’s pleadings
would be in order so that the trial could proceed witho ut further ado.
[13] That may well be so , but s ince the defendant’s anticipated amended was
really only in the imagination of the defendant’s legal representatives at the time, the
plaintiff could hardly have foreseen how it was going to react to it once it had been
formulated . I am further in no way p ersuaded that the plaintiff agreed to waive its
right to object on any interpretation of the Order . The defendant submits that that
eventuality, of the plaintiff not agreeing to the amendment, was especially catered for
in prayer 3 of the Order , which sti pulation it urged upon this court to hold the plaintiff
to. Ironically though, if the plaintiff’s objection to the proposed amendment recorded
in its Rule 30 (2) (b) notice is taken as its “response ” envisaged in prayer 3, the next
logical thing for the d efendant to have done would have been to lodge an application
to amend regardless of the impending postponement date . This he did not do .
Instead he asks th is court to perfect an amendment which the plaintiff was within its
rights to object to and in effect did complain about.
4 See footnote 1.
[14] It is a well-established principle t hat a party desiring an amendment must ask
for it and that it is not for the court to make it witho ut being asked .5 Besides which,
the application before me concerns the objection raised in the plaintiff’s notice in
terms of Rule 30 (2)(b) rather than an application to amend. For this reason I
informed the parties that I should not have to decide the merits of the implied
objection to the amendment of the defendant’s plea itself.
[15] A further anomaly has arisen concerning the issue between t he parties as to
whether or not the defendant purported to withdraw any admission previously made
by him. In answer to this accusation the defendant retorted that he was just seeking
to make sense of what the plaintiff’s summons provided, in the absence o f it having
filed a declaration in the matter.
[16] It is perhaps apposite to a dvert to the explanation for his denial of the
plaintiff’s contention that the amended plea withdraws admissions:
“The suggest ion that the amended plea withdraws admission s
22. It will be more convenient to deal with specifics of this allegation in my
seriatim response and I will do so below.
23. For the present purposes, however, I point out simply that the
allegation is wrong. It is made without reference to the summons as it
stands and fails to have regard to the amended plea, as a whole.
24. On this note I am advised that one of the cause of ambiguity in this
case is the failure of Absa to follow the Uniform Rules by filing a
declaration when its case on a simple summons was opposed.
25. The simple summons, presumabl y because of the brevity with which it
has been prepared, is confusing and inaccurate.
5 Bams Executors v Haupt (1891) 8 S C 253; The Master v Deed at 2000 (3) SA 1076 (N) at 1090 D –
E and Keely v Heller 1904 TS 101 at 103.
26. For example, the allegations in paragraph 1.1 suggest that moneys
were lent and advanced to me “on a mortgage bond account ”. I am
advised that this is inaccurate and that a loan is lent and advanced on
the basis of a loan agreement. A lo an arrangement is secured by a
mortgage bond.
27. Moreover, the summons fails to set o ut the material terms of the
agreement relied on or to indicate when they were concluded and who
represented the parties. I am advised that the Uniform Rules require
pleadings to contain this information because it enables a defendant to
plead properly to the allegations made.
28. Another ambiguity evident fr om the summons is in paragraph 4.1 which
refers to the “ most recent mortgage bond” being attached as annexure
“D1”. Not only is there no annexure “D1” to the summons but given
that Absa appears to refer in the summons (paragraph 3.1) to three
separate mortgage bonds it is difficult to identify exactly what is relied
on or suggested by Absa.
29. The amendment to the plea has therefore required an attempt to work
out what Absa’s case is with reference to the discovered documents
and pre -trial minutes. Had Absa complied with the Uniform Rules in
preparing its pleadings, I am advised that this may have been avoided.”
[17] The defendant’s justification in this respect, coupled with his assertion that
there was no declaration to plead to as one would expect in circumstances where
the plaintiff commenced the action with a simple summons and the action became
opposed, reveals that were are here concerned with the kind of scenario warned
against by the authorities whe re an arrangement to amend before the amendment
itself has been formulated has worked to the prejudice of a party. Here in fact it h as
worked to the prejudice of both parties.
[18] Erasmus ,6 with reference to Cross v Ferreira ,7 states in this regard that :
“… in accordance with the general rule, a Court will not grant leave to amend
until the amendment is formulated; Courts are adverse to the procedure of
granting leave to amend within the limits laid down by an order, for the
amendment when it is ultimately formulated may be found to be excipiable or
may unduly restrict the applicant, or confer upon his amended pleading an
immunity from exception that might wor k an injustice to the respondent.8 If
the particulars are not set out in the notice, a party rece iving the notice may
invoke the provisions of rule 30.”
[19] A court in determining an application in terms of the provisions of Rule 30 (1)
has a wide discretion if it forms the opinion that the proceeding or step is irregular or
improper.
[20] A Rule 30 applicat ion is intended to be facile procedure whereby a hindrance
to the future conduct of the litigation, whether it is created by a non -observance of
what the Rules of Court intended, “or otherwise ”, is removed.9
[21] I think it is fair to state that whatever good intentions the parties had in
agreeing to expedite the hearing of the trial, both to some extent have been
confounded by unexpected irregularities in form that have interposed themselves as
clear hindrances to the matter proceeding.
[22] For the plaintiff’s part it must have realised when confronted with the
amended plea that it could not plead consequentially , hence its invocation of the
remedy provided for in Rule 30 , albeit not to object to the proposed amendment itself
but rather the form of it.10
6 Erasmus : Superior Court Practice, S econd Edition, Van Loggerenberg, D1 – 330A. See also Keely
v Heller Supra at 103.
7 1950 (3) SA 443 (C).
8 Supra at 452.
9 SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA 329 ( O) at 333 G –
H.
10 Given the approach I have adopted herein it is unnecessary to decide the issue whether the plaintiff
agreed to a variation of the procedure to amend as provided for in Rule 28 and/or how the terms of
the order ought to be interpreted. The plaintiff could however notionally have used Rule 30 (as
[23] There can be no question in my mind that the plaintiff did not waive its
entitlement to object to the anticipated amendment . To the contrary, as I have
emphasized before, w hen i t agreed to the terms of the Order, no amendment was by
then in contemplation.
[24] For the defendant’s part, his legal representatives realised when confronted
with the obligation to formulate his amendment to the plea in the hurried
circumstances that he had agreed to, that it was difficult to plea d to the simple
summons in the absence of the plaintiff having filed a declaration , but instead of
raising that as a hindrance, he forged ahead. Once it became evident that there was
no declaration to plead to, however, the filing of a plea should have been recognized
as an exercise in futility. Also, any present contest concerning its delivery, import, or
impact is rather a moot one .
[25] In terms of Rule 20 (1) the plaintiff was obliged to deliver a declaration once i t
became plain that the defendant had delivered a notice of intention to defend . Until
such a declaration has been filed, the delivery of any plea at all is to my mind
premature.
[26] The best place to start again in my view would be for the declaration to be
filed and even before that , if the parties are so advised , for the plaintiff to ask that the
case management order issued by me during the Bhisho/East London pilot case
management project pursuant to which inactive case s were being archived, be
uplifted.11
[27] In the result I find that the delivery of the amendment is irregular, albeit for a
different reason than that suggested by the plaintiff and should be set aside. This
would naturally result in the defendant’s earlier plea becoming superfluous and every
argument against or for it, entirely academic.
suggested by Rule 28 (8)) to have objected to the amendment itself. The defendant could then, again
notionally, have file d an application to amend at the resumed hearing.
11 If it remains of any concern and for legal certainty , an informal application to the case management
judge would remove this hindrance, which the defendant also drew attention to in his opposing
papers .
[28] As for the issue of costs, the plaintiff ought to have foreseen that its pleadings
were not regular to start with or at least have recognized the encumbrance to the
defenda nt when he qualified in his plea that “ the defendant files this amended plea to
the plaintiff’s simple summons (sic), the plaintiff having failed to file a declaration in
the matter ”.
[29] The defendant however is also not blameless . Once the realisation dawned
on his legal representative s that no declaration had been filed, he ought to have
invited the plaintiff to correct the anomaly.
[30] The plaintiff was notionally right to insist that it was entitled to object to the
delivery of the putative amended plea, upon which eventuality the defendant should
not have persisted in failing to withdraw it especially with the knowledge that the
declaration was absent and because the plaintiff had by the n also impliedly objected
to the amendment itself.12
[31] Litigants should try to remove hindrances to matters proceeding by their own
endeavours before asking the court to intervene. This is after all the objective of the
notice required by Rule 30 (2)(b) before resorting to the remedy provided for by sub -
rule (1) .
[32] In the c ircumstances of the matter I am not inclined to reward either of the
parties with the costs of the application.
[33] I issue the following order:
12 In the ordinary course, but for the fact that it came to light that there had been no declaration filed,
the defendant ought to have taken the step of applying for the amendment (on his version of how the
Order fell to be interpreted). There would in tha t event have been no obligation on him to tender the
costs occasioned by the irregular step that existed in the plaintiff’s perception. Those costs would
have been costs in the main proceedings. This view is underpinned by two policy considerations,
namel y (i) that litigants who commit irregularities should be encouraged to cure them quickly and
cheaply, without running the risk of an adverse costs order; and (ii) that the purpose of rule 30A is to
avoid excessive formality and point -taking and to enable t he parties to get on with the litigation by
curing between themselves any prejudice caused by an irregularity. See RVRN Crushing (Pty) Ltd v
GDF Incorporated Consultants (Pty) Ltd 2024 (1) SA 269 (GJ) at para 10 – 13.
1. The delivery of the defendant’s putative amended plea is set aside .
2. The p laintiff is directed to take whatever steps it is advised to in
accordance with the uniform rules of court to regularize its pleadings
before the defendant is prevailed upon to plead his defence.
3. Each party is to pay their own costs of the application.
_________________
B HARTLE
JUDGE OF THE HIGH COURT
DATE OF HEARING : 8 AUGUST 2024
DATE OF JUDGMENT : 4 FEBRUARY 2025
Appearances:
For the Plaintiff : Mr. D Kotze instructed by Sandenbergh Nel Haggard c/o Bax
Kaplan Russell Inc. , East London (ref. Mr. Webb ).
For the Defendant : Mr. I Smuts SC together Mr. G Brown , instructed by Changfoot
Van Breda Attorneys, East London (ref. WC/ddb/MUR9/0001).