IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN 1
Reportable/ Not reportable
Case no: 1109/2023
In the matter between
SIYABONGA SHEZI
and
SANTAM LIMITED
In re:
SIY ABO NGA SHEZI
and
SANTAM LIMITED
Neutral citation:
Coram: Mpama AJ
Heard: 13 FEBRUARY 2025 APPLICANT
RESPONDENT
PLAINTIFF
DEFENDANT
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and time for hand
down is deemed to be 14h00 on 08 May 2025.
Summary: Application for dismissal of plaintiff's claim -failure to file notice in
terms of rule 30A -conduct an irregular step and set aside
2
ORDER
1. Condonation for late filing by the plaintiff is granted.
2. The rule 30 application is granted. The defendant's application for the dismissal of the
plaintiff's claim is declared an irregular step and is set aside.
3. Each party is to pay its own costs for the applications.
4. The defendant is ordered to pay the plaintiff's cost occasioned by the postponement
on 7 November 2024 on Scale B as contemplated under R67 A of the Uniform Rules of
Court.
JUDGMENT
Mpama AJ
[1] To avoid verbosity and for the sake of convenience, I will refer to the parties as
they are referred to in the main action. The court is seized with two applications. The first
application is brought by the defendant for the dismissal of the plaintiff's claim. The
second by the plaintiff in terms of rule 30 of the Uniform Rules of the Court (the Rules)
for an order declaring the defendant's dismissal application an irregular step and setting
it aside.
[2] The plaintiff and the defendant are embroiled in a legal dispute commenced when
the plaintiff instituted action proceedings against the defendant. The cause of action is
predicated on a contract of insurance in terms of which the defendant undertook to insure
the plaintiff's motor vehicle, a 2021 Mercedes Benz A200, to the value of R644 556.
[3] On 26 February 2022 the plaintiff was involved in an accident and his vehicle
suffered damages to the tune of R385 573.16. He lodged a claim which was repudiated
by the defendant. This spurred the plaintiff to issue summons against the defendant on
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2 March 2023. The defendant filed a notice of intention to defend followed by an
exception to the plaintiff's particulars of claim.
[4] The exception was heard on 16 February 2024 and the court, as per Mhlambi J,
granted an order (the order) as follows:
'1. The exception is upheld.
2. The plaintiff is granted 20 days to amend his particulars of claim, failing which leave
is granted to the defendant to enrol the matter to have the plaintiff's case dismissed .'
[5] Thus, the plaintiff had 20 days from the date of the order to amend his particulars
of claim. He had until 15 March 2024 to file his amended particulars of claim.
Nevertheless, he filed on 25 March 2024 and sought no condonation for the late filing of
his amended particulars of claim.
[6] On 26 March 2024 the defendant forwarded a letter to the plaintiff's attorney,
bringing to his attention that the plaintiff failed to comply with the order and the defendant
intended to bring an application for the dismissal of the plaintiff's claim. No response was
received from the plaintiff.
[7] On 2 May 2024 the defendant served and filed an application for the dismissal
of the plaintiff's claim. On 17 May 2024, the plaintiff filed a notice to oppose the
application followed by a notice in terms of Rule 30(2)(b) ~:>n 18 June 2024. On 22 July
2024 the plaintiff filed an application in terms of Rule 30 coupled with an application for
condonation for late filing. He sought an order condoning his late filing and setting aside
the defendant's application for dismissal of his claim as an irregular step. The application
is opposed by the defendant.
[8] By agreement between the parties the applications were enrolled for hearing
simultaneously. Moreover, the defendant sought condonation for late filing of its
answering affidavit to the plaintiff's rule 30 application. During hearing, the plaintiffs
counsel informed court that she has no instructions to oppose the defendant's application
for condonation. I was satisfied that a case has been made and exercising my discretion ,
granted the order.
[9] Mr John Smit deposed to an affidavit in support of the defendant's application. In
his affidavit he averred that the plaintiff failed to comply with the order in that the amended
particulars of claim were filed out of time and no condonation for late filing was sought
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by the plaintiff. He stated that this was tantamount to non-compliance with the order, the
court should ignore the amended particulars of claim and dismiss the plaintiff's claim.
Lastly, Mr Smit stated that the defendant successfully excepted the plaintiff's particulars
of claim as the plaintiff did not plead compliance with time limits provided in the insurance
contract and the amended particulars of claim in its form do not address this shortcoming.
[10) During the hearing, the defendant submitted that the failure to seek condonation
from the court for late filing of the amended particulars of claim rendered them pro non
scripto entitling the defendant to the dismissal of the plaintiff's claim. The defendant,
lastly submitted that a letter was forwarded by the defendant to the plaintiff notifying him
of his non-compliance with the order but the defendant chose not to respond to the letter
and it was not even necessary for the defendant to notify the plaintiff since the order
empowered them to approach the court for the dismissal of the claim in the event that
there is non-compliance with the order.
(11) The defendant asserted that plaintiff's rule 30 application should be dismissed as
it is out of time and the plaintiff has not made a case for condonation for its late filing. It
was contended that the plaintiff's explanation for not filing on time was that he did have
sufficient funds to instruct his attorney until June 2024, however, the application was
further delayed, only to be filed in July 2_024 and there was no explanation proffered for
this delay.
[12] The plaintiff deposed to an affidavit in support of the rule 30 application. First, he
dealt with an application for condonation for late filing of the application. He averred that
his failure to file the application on time was occasioned by his financial woes as he was
in no position to pay legal fees. He stated that in March 2024, in order to alleviate his
position, he successfully applied for a transfer to KwaZulu-Natal in order to be closer to
his home. When moving from the Free State, he incurred relocation costs and for a period
of about three to four months he was unable to raise funds for his attorney. It was only
during the third week of June 2024 that he managed to pay his attorney. This served as
the reason why his application was filed out of time. His attorney's confirmatory affidavit
is also attached to the application. The plaintiff further averred that the defendant's
application was an irregular step in that no notice was forwarded to him in terms of rule
30 or 30A and the letter sent to his attorney did not amount to such notice.
[13] Rule 30 provides:
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'IRREGULAR PROCEEDINGS
30(1) A party to a cause in which an irregular step has been taken by any other party may apply
to court to set it aside.
(2) An application 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-
(a) the applicant had not himself taken a further step in the cause with knowledge of the
irregularity;
(b) the applicant has, within ten days of becoming aware of the step, by written notice afforded
his opponent an opportunity of removing the cause of complaint within 10 days;
(c) the application is delivered within fifteen days after the expiry of the second period mentioned
in subparagraph (b) of subrule (2).
(3) If at the hearing of such application the court is of the opinion that the proceeding or step is
irregular or improper, it may set it aside in whole or in part, either as against all the parties or as
against some of them, and grant leave to amend or make any such order as to it seems meet.'
[14] An applicant complaining of an irregular step must first notify the defaulting party
in terms of rule 30(2}(b) within 10 days of gaining knowledge of such an impropriety or
irregular step. It the defaulting party does nothing to cure the complaint, an applicant has
15 days from the expiry of the 10-day period to bring an application in terms of rule 30.
(15] In the case of Afrocentrics Projects and Services (Pty) Limited f/a Innovative
Distribution v State Information Technology Agency (SITA) SOC Limited and Others 1 the
Constitutional Court at para 26 said:
'Rule 30(3) contemplates a two-stage process. A court must first satisfy itself that the proceeding
or step is irregular or improper. If it is so satisfied, it has the wide power to set the proceeding
aside in its entirety or in part, grant leave to amend or make any order as it deems fit. These are,
no doubt wide powers. Following its conclusion that a step or proceeding is irregular or improper,
a court however, is required to make an order.'2
[16] Rule 30A provides:
'Non-compliance with rules:
1 Afrocentrics Projects and Services (Pty) Limited tla Innovative Distribution v State Information
Technology Agency (SITA) SOC Limited and Others (2023] ZACC 2; 2023 (4) BCLR 361 (CC).
2
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(1) Where a party fails to comply with these rules or with a request made or no~ice given pursuant
thereto, or with an order or direction made in a judicial case management process referred to in
Rule 37 A, any other party may notify the defaulting party that he or she intends, after the lapse
of 10 days from the date of delivery of such notification to apply for an order -
(a) that such rule, notice or request, order or direction be complied with or
(b) that the claim or defence be struck out.
(2) Where a party fails to comply within the period of 10 days contemplated in subrule (1),
application may on notice be made to the court and the court may make such order thereon as
it deems fit.'
[17] It is difficult, if not impossible, to divorce the two applications from each other.
There is a causal link between the two applications.
[18] The plaintiff served and filed his notice in terms of rule 30(2)(b) on 18 June 2024
and his application on 22 July. They were both filed out of time. He sought condonation
for late filing of his notice and application.
[19] The Court may, in terms of rule 27(3) on good cause shown, condone any non
compliance with the Rules. Condonation will be granted by the court if the party seeking
condonation shows that there is a sufficient cause for granting of the application.
[20] The Court in determining whether to grant or refuse condonation must consider
the following factors: the degree of delay, the explanation offered and the potential
prejudice to the other party. In Grootboom v National Prosecuting Authority3 the
Constitutional Court expressed the position as follows:
'It is now trite that condonation cannot be had for the mere asking. A party seeking condonation
must make out a case entitling it to the court's indulgence . It must show sufficient cause this
requires a party to give a full explanation for the non-compliance with the rules of the court or
court's directions. Of great significance , the explanation must be reasonable enough to excuse
the default. '4
[21] The plaintiff explained his reasons for late filing and attached some documents to
substantiate his case. His attorney, Mr Mfingwana also confirmed some of the averments
made by the plaintiff in so far as reference is made to him. The reasons have not been
controverted . However, it is the defendant's contention that if the plaintiff had no finances
3 Grootboom v National Prosecuting Authority and Another [2013] ZACC 37; 2014 (2) SA 68 (CC).
4 Ibid para 23.
7
to instruct his attorney until June 2024, there is no explanation for late the filing of the
application.
[22] I am of the opinion that the plaintiffs explanation passes muster, the period of
delay is reasonable and there is no prejudice to the defendant in condoning the delay.
Accordingly, I grant condonation to the plaintiff for the late filing.
[23] I now turn to deal with the applications. On 26 March 2024, the defendant
forwarded a letter to the plaintiffs attorney after the filing of the amended particulars of
claim on 25 March 2024. The contents of the letter are self-explanatory; the defendant
brought to the attention of the plaintiff that there was non-compliance with the order of
the court and that it will approach the court for an order dismissing the plaintiffs claim.
The plaintiff did not respond to the letter; there was a hiatus. Then the defendant
launched an application for the dismissal of the claim on 2 May 2024. It is the defendant's
contention that it was not required to serve a notice before applying for the dismissal of
the plaintiff's claim.
[25] I do not agree with the defendant's contentions. The defendant is armed with a
court order. It is before court to seek an order for the dismissal of the plaintiff's claim on
' the basis of non-compliance with a court order. In terms of rule 30A the defendant would
be and or is entitled to approach the court for this relief. However, as the party alleging
non-compliance, it ought to have formally notified the defaulting party (the plaintiff) of
such non-compliance. Thereafter, it needed to wait for ten days after delivery of its notice
to the defaulting party. The purpose would have been to afford an opportunity to the
defaulting party to cure the defect. Should the defaulting party fail to cure the defect or
respond to the notice within the period of ten days, as the party alleging non-compliance,
it would be entitled to approach the court and seek dismissal of the plaintiff's claim and
apply to court for an order. Once the application is made, the court has a discretion to
order that the rule, notice, request, order or direction initially ignored be complied with or
that the claim or defence of the defaulting party be struck out.
[26] The defendant did not file any notice in terms of rule 30A(1 ). The letter written to
the plaintiffs attorney does not suffice as a proper notice. To apply for the dismissal of
the claim without properly notifying the plaintiff of the impugned conduct rendered the
defendant's application immature and an irregular step. A proper case has been made
for the relief that the plaintiff sought. The defendant's application is a flawed procedure
8
and amounts to an irregular step.
[27] The plaintiff had filed his amended particulars of claim when the defendant
brought its application. The defendant appears to have taken an issue with the fact that
no condonation was sought for late filing as well as the substance of the amended
particulars of claim. It is not for this court to decide these issues.
[28] It will be amiss not to comment on the conduct displayed by the plaintiff in his
dealings with the defendant. At the outset the defendant alleged that the plaintiff ignored
the time limits in the insurance contract. The plaintiff is very silent on this issue as it
neither disputed nor admitted these allegations. This seems to have been transmitted to
these proceeaings as there are similar signs of flagrant disregard of time limits by the
plaintiff.
[29] The general rule is that a successful party should be awarded costs. It is my
considered view that, taking into consideration the plaintiff's conduct in these
proceedings, I must deviate from the norm and order each party to pay own costs.
Furthermore, the defendant submitted that the plaintiff should pay the costs occasioned
by a postponement on 7 November 2024 before Nemavhidi AJ. Common to the parties
is that the postponement was occasioned by the defendant's failure to file an application
for condonation for the late filing of its answering affidavit to the plaintiff's application.
The defendant contended that since the plaintiff did not oppose its application for
condonation, he should pay the costs occasioned by the postponement. I do not agree.
Nothing precluded the plaintiff from electing not to oppose the application once filed and
considered. The defendant should pay the costs occasioned by a postponement on 7
November 2024 before Nemavhidi AJ.
[30] I accordingly make the following order:
1. Condonation for late filing by the plaintiff is granted.
2. The rule 30 application is granted. The defendant's application for the dismissal of the
plaintiff's claim is declared an irregular step and is set aside.
3. Each party is to pay its own costs for the applications .
4. The defendant is ordered to pay the plaintiff's cost occasioned by the postponement
on 7 November 2024 on Scale 8 as contemplated under R67A of the Uniform Rules of
Court.
9
Appearances
For the plaintiff:
Instructed by:
For the defendant:
Instructed by: Ms E Ngantweni
Sfvl MFINGWANA ATTORNEYS
JOHANNESBURG
c/o MLOZANA ATTORNEYS IN
WESTDENE
BLOEMFONTEIN
Adv GC Steenkamp
BOP ATTORNEYS
TYGER VALLEY
c/o KRAMERWEIHMANN
ATTORNEYS
WESTDENE
BLOEMFONTEIN 10