IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Reportable/Not Reportable
Case no: 20457/2023
In the matter between:
PREDYNAMIC (PTY) LTD Plaintiff
and
KRUGER & CO INC First Defendant
FREDERICK SAAYMAN Second Defendant
Neutral citation: Kruger & Co v Predynamic (Pty) Ltd (Case no20457/2023) [2023]
ZAWCHC (02 June 2025)
Coram: LEKHULENI J
Heard : 28 March 2025
Delivered : 02 June 2025
Summary: The plaintiff applied for default judgment against the first defendant for
costs due to the first defendant's failure to file a plea, despite receiving a notice of
bar. In response, the first defendant applied to have the bar lifted so that it could
plead to the plaintiff's summons. The court found that the first defendant showed
good cause for lifting the bar and granted the application. The plaintiff's request for a
default judgment on costs was dismissed. The costs of both applications will be
costs in t he cause .
ORDER
1 The application for the upliftment of bar is granted.
2 The first defendant is ordered to file its plea (should it wish to defend the
matter) within five (5) days from date hereof.
3 The application for default judgment on costs is hereby dismissed .
4 The costs of both applications will be costs in the cause.
JUDGMENT
LEKHULENI J
Introduction
[1] There are two applications before this Court: an application by the plaintiff for
default judgment on costs against the first defendant, a firm of attorneys and an
application by the first defendant for the upliftment of the notice of bar. In the
application for def ault judgment, the plaintiff seeks an order that the first defendant
pays the costs of the main action, which has since been settled. The first defendant
opposed the default judgment application and applied for the upliftment of the bar as
it intends to de fend the question of costs that the plaintiff seeks against it in the main
action .
Background facts
[2] In 2015, the first defendant (Kruger & Co Inc) represented the second
defendant in a claim that the second defendant instituted against the Road Accident
Fund ('RAF'). The claim against the RAF was ultimately settled, and the second
defendant received a ca pital payment from the RAF in the sum of R3 050 000.00,
pursuant to an order of this Court taken by agreement on 3 June 2022. In June 2015,
the second defendant and the plaintiff were engaged in various business
transactions and ventures. As a result of th ose business transactions, the second
defendant became indebted to the plaintiff.
[3] As it was anticipated that the second defendant would successfully prosecute
his claim against the RAF, the first defendant was approached by one C H Prinsloo,
a director of the plaintiff, who sought an undertaking that the amount owed by the
second defend ant to the plaintiff in respect of certain business transactions be paid
from the proceeds of his RAF claim, should there be funds available after the
deduction of legal costs had been made. The first defendant made such an
undertaking in writing to CH Pri nsloo ("Prinsloo") of the plaintiff. In addition, in 2015,
after the undertaking was given, the second defendant executed an acknowledgment
of debt in favour of the plaintiff for R1,000,000 plus legal costs related to certain
identified business transactio ns. In 2018, the plaintiff obtained default judgment
against the second defendant based on the Acknowledgment of debt.
[4] After the second defendant's claim with the RAF had been settled and
finalised, in compliance with the undertaking, the first defendant addressed a letter of
discharge to Prinsloo, the import of which was that the first defendant would pay
Prinsloo the amo unt of R600,000 in terms of the undertaking and Prinsloo would, in
turn, discharge the first defendant from its obligations and liability under the
undertaking. Prinsloo and the plaintiff were dissatisfied with this. The plaintiff took the
view that the un dertaking was not limited to R600,000 but also included monies
owed by the second defendant to the plaintiff pursuant to the judgment debt. The
plaintiff and the defendant thereafter engage each other in correspondence.
[5] The plaintiff demanded to know how the first defendant had arrived at
R600,000. The plaintiff sought payment under the undertaking of the full amount due
to it, including that which was due in terms of the judgment debt arising from the
Acknowledgment of debt. The first defendant's pos ition was that it was largely
immaterial how the sum of R600,000 was computed in that the undertaking, which
defined the full extent of the first defendant's obligations to the plaintiff and or
Prinsloo, was in any event limited to the amount of R600,000.
[6] In November 2023, the plaintiff instituted action against the first and second
defendants. The plaintiff sought confirmation that the undertaking bound the first
defendant and sought information concerning the amount the RAF awarded to the
second def endant and the deductions made therefrom. The plaintiff also sought
payment of the full balance after deductions held in trust by the first defendant on
behalf of the second defendant or the R600,000, whichever was the greater. The first
defendant held the sum of R1 366,200.98 in trust, which was the net amount
received for the second defendant from the RAF after the deduction of attorney and
client costs, interest, loans made, and all expenses payable.
[7] In its summons, the plaintiff contended that it w as entitled to the full amount
held by the first defendant in trust for the second defendant. The first defendant filed
a notice of intention to defend the plaintiff's claim on 22 November 2023. According
to the first defendant, the second defendant conten ded that the plaintiff had failed to
comply with its obligations in terms of the transaction detailed in the undertaking. As
such, there was no amount due thereunder. The first defendant pointed out that the
undertaking provided that payment would only be made if there was indebtedness
when the second defendant's RAF claim was finalised. Furthermore, the first
defendant contended that the undertaking was only limited to R600,000.
[8] The parties did not agree on the total sum that must be paid to the plain tiff in
terms of the first defendant's undertaking. On 13 February 2024, the plaintiff
delivered a demand for plea. The first defendant asserted that while faced with these
competing claims, which it could not resolve and being of the view that the main
action was a dispute between the plaintiff and the second defendant and desiring
only to comply with its own undertaking, it (the first defendant) launched interpleader
proceedings in respect of the funds on 19 February 2024. According to the first
defendant , it took the view that the interpleader proceedings would resolve the
matter finally.
[9] The first defendant asserted that its understanding was that the interpleader
proceedings suspended all other legal proceedings in terms of which the funds were
claimed. It accordingly did not file a plea in the main action and awaited the outcome
of the i nterpleader proceedings. The first defendant stated that if it had made an
error in that a plea should have been filed at that stage, it was a genuine mistake on
its part. Moreover, this did not indicate any intent to delay the proceedings or hinder
the plaintiff ’s claim in the main action. This Court heard the interpleader proceedings
on 15 March 2024. The second defendant did not appear and made no claim to the
funds. Accordingly, by an order from this Court, the funds were awarded to the
plaintiff and su bsequently paid in full by the first defendant. The costs of the
interpleader proceedings were ordered to be cost in the cause.
[10] Subsequently, the plaintiff claimed the costs of the main proceedings,
asserting that it was substantively successful in all respects with the relief sought
against the first respondent. The plaintiff also asserted that in line with the usual rule
regarding costs, the first defendant should be liable for the costs of the action. On 26
August 2024, the plaintiff served an app lication for default judgment (for costs) on
the first defendant. Upon receipt of the application, the first defendant brought an
application for the removal of the bar as it argued that it intended to oppose the
plaintiff's claim for costs against it. The plaintiff asserts that the first defendant has,
belatedly and many months after the notice of bar was served and the interpleader
order was granted, brought an application to uplift the bar for the sole purpose of
disputing its liability for costs.
[11] The plaintiff pointed out that the first defendant's draft plea is, in essence, an
attempt to deal with the merits of the capital and interest claimed by the plaintiff in
the main action. The plaintiff contends that as a result of the judgment on the
interpleader, that aspect has become res judicata and cannot, therefore, be placed in
dispute at this stage. In the plaintiff's opinion, it will serve no purpose to uplift the bar,
only to allow the first defendant an opportunity to plead facts which, even if
established at the trial , would not provide the first defendant with a valid defence to
the plaintiff's claim for costs. According to the plaintiff, it is evident from the judgment
on the interpleader that the plaintiff is successful in all aspects. In the premises, the
plaintiff believes there is no reason why the first defendant's application to uplift the
bar should not be dismissed with cost and why the costs of the main action should
not be awarded to the plaintiff as a successful party. The plaintiff p rayed that the
application for default judgment against the first defendant on costs be granted and
that the application to uplift the bar be dismissed with costs. On the other hand, the
first defendant prayed for the upliftment of the bar.
Discussion
[12] As discussed earlier, there are two applications before this Court. The plaintiff
seeks default judgment for costs against the first defendant. In the second
application, the second defendant seeks an indulgence to uplift the bar to enable it to
file a plea attached to its application. In my view, it is instructive for this Court to
consider the first defendant's application to uplift the bar as in the event the
application succeeds, it will follow as a matter of course that the application for
default judgment must fail.
[13] Rule 27 of the Uniform Rules provides for the extension of time, removal of
bar and condonation. In terms of this rule , the court may, on good cause shown,
condone any non -compliance with the Uniform Rule s. In other words, good cause is
a requirement for any extension or abridging of time and for the condonation of non -
compliance with the court rules . A party seeking condonation for non-compliance
with the rules must show good cause.
[14] To demonstrate go od cause, an applicant should at least satisfy two
requirements. First, the applicant must file an affidavit satisfactorily explaining the
delay. In this regard, the defendant must at least explain his default sufficiently fully
to enable the court to unde rstand how it came about and assess his conduct and
motives.1 The application must be bona fide and not made with the intention of
delaying the opposite party’s claim.2 The second requirement is that the applicant
should satisfy the court on oath that he has a bona fide defence or that his action is
clearly not ill -founded, as the case may be.3 The minimum that the applicant must
1 Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 353A ; Laerskool Generaal Hendrik
Schoeman v Bastian Financial Services (Pty) Ltd 2012 (2) SA 637 (CC) at 640H –I.
2 Ingosstrakh v Global Aviation Investments (Pty) Ltd 2021 (6) SA 352 (SCA) para 21; Grant v
Plumbers (Pty) Ltd 1949 (2) SA 470 (O) at 476 .
3 Santa Fe Sectional Title Scheme No 61/1994 Body Corporate v Bassonia Four Zero Se ven CC 2018
(3) SA 451 (GJ) at 454F –G.
show is that his defence is not patently unfounded and that it is based upon facts
which, if proved, would constitute a defence.4
[15] In the present matter, it is common cause that the first defendant delivered its
notice of intention to defend and did not file a plea. According to the first defendant,
the failure to file a plea in the main action was because it was of the bona fide beli ef
that having launched interpleader proceedings, the main action, including the need
to file a plea, was suspended. In addition, the first defendant asserted that when the
interpleader was finalised, and the funds were paid to the plaintiff, it was of the view
that the matter was finalised and that a plea was unnecessary.
[16] To the extent that the plaintiff is prejudiced, the first defendant stated that
such prejudice could easily be cured by having the first defendant pay any wasted
costs associated with the late filing of the first defendant's plea. In my view, the
explanation the first defendant proffered is plausible. In fact, the plaintiff also
suspended all proceedings after the interpleader summons was issued. It is
important to note that a noti ce of bar was served upon the first defendant on 11
February 2024, requesting that the first defendant file its plea within five days. The
dies for filing a plea expired on 18 February 2024. After the interpleader proceedings
were instituted, the plaintiff did not apply for default judgment against the first
defendant.
[17] Distinctly, from the conduct of both parties, it can be reasonably inferred that
they both accepted that the interpleader proceedings suspended further proceedings
in the main action that the plaintiff instituted against the first and second defendants.
This conclusion is borne out by the following: Instead of applying for default
judgment after the 5 days set out in the notice of bar expired, the plaintiff waited fo r
six months and only applied for default judgment on 26 August 2024. In my view, the
error on the part of the first defendant not to file its plea in time is bona fide and must
be condoned. It is an error that was sincere and corroborated by the plaintiff 's
conduct. Accordingly, it was reasonable for the first defendant to labour under the
mistaken belief that the matter was settled and not to proceed with filing a plea.
4 Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O) at 476 –7.
[18] The plaintiff contended that based on the judgment on the interpleader
proceedin gs, the question whether the plaintiff was entitled to payment by the first
defendant of monies that were held in trust on behalf of the second defendant is res
judicata as between the plaintiff and the defendants. That may be the case; however,
the inquir y does not end there. This aspect is relevant to determining the costs of the
main action. For instance, if it is found that the plaintiff did not have locus standi as it
is alleged by the first defendant in its application, then the plaintiff will not be entitled
to costs. Evidently, the issues raised by the first defendant in the founding affidavit
and the draft plea are relevant in determining costs in the main action.
[19] Furthermore, a s far as the prospects of success in the main action are
concerned, the first defendant asserted in his founding affidavit that it acted
reasonabl y at all times in balancing the interest s of the plaintiff and the second
defendant as competing claimants. The first defendant further stated that it had no
interest or stake in the dispute s between the second defendant and the plaintiff . The
first defendant contended that it intend ed to argue the limitation of the undertaking.
Furthermore, t he right to argue the limitation of the undertaking was reserved in the
order granted by consent during the interpleader proceeding.
[20] I firmly believe that the interpretation of the undertaking is relevant in the
determination of costs in the main action. If the court finds that indeed the
undertaking limits the first defendant’s liability to R600 000, that will mean that the
action proceedings instituted by t he plaintiff would not have been necessary . This
issue is therefore relevant on the determination of costs.
[21] In summary, the first defendant gave a bona fide defence to the plaintiff's
claim. If the defence raised by the first defendant is proved at trial, it will constitute a
defence to the plaintiff's case. If the plaintiff does not have locus standi to institu te
proceedings against the first defendant, that defence will ordinarily be dispositive of
the plaintiff's claim. Accordingly, the first defendant has given a satisfactorily
explanation for its default and indeed raised a bona fide defence to the plaintiff 's
claim. It cannot be said that the first defendant's application to uplift the bar is made
with the intention of delaying the plaintiff's claim.
[22] Finally, from the correspondence exchanged between the parties, the first
defendant persisted in disput ing the plaintiff's claim for costs against it. It is my firm
view that a court should be slow to refuse a defendant who has a valid defence the
opportunity to hear his defence in court. To deny a party who has raised a plausible
defence in an application for rescission or condonation application, as is the case in
the present matter, will violate a constitutional right of access to court as envisaged
in section 34 of the Constitution.
[23] I appreciate that the plaintiff had to issue summons to enforce its right against
the defendants. However, the dispute on the interpretation of the undertaking,
particularly the extent to which the undertaking limits or does not limit the first
defendant's liability, is relevant in determining costs. A meaningful determination in
this regard can only be made once the bar is lifted.
Order
[24] Given all these considerations, the following order is granted:
24.1 The application for the upliftment of the notice of bar is granted.
24.2 The first defendant is ordered to file its plea (should it wish to defend
the matter ) within five (5) days from date hereof.
24.3 The application for default judgment on costs is her eby dismissed.
24.4 The costs of both applications will be costs in the cause.
________ ___________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
Appearances
For plaintiff : LN Wessels
Instructed by: Couzyn Hertzog & Horak
For respondent: A Maher
Instructed by: Kruger & CO Inc