2
In re:
KANSAI PLASCON (PTY) LTD Plaintiff
And
REDEC SERVICES (PTY) LTD First Defendant
ENGELBRECHT, SCHALK WILLEM BURGER Second Defendant
ASSNESS, LIRAN BARUCH Third Defendant
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
H M VILJOEN AJ
INTRODUCTION
[1] This is an application by the defendants1 for leave to appeal to the Supreme
Court of Appeal, alternatively to the Full Bench of this Court, against my entire
judgment of 18 February 2025.
[2] On 3 February 2025, I heard five applications arising from the action between
the parties. In my judgment, I granted an order striking out the defendants '
defence. This sanction was imposed as a direct consequence of their failure
to comply with a prior court order dated 7 September 2022 ("the compelling
1 Parties are referred to as cited in the action.
3
order"). That order directed them to file heads of argument in respect of the
plaintiff 's application for summary judgment and the plaintiff 's conjoined
application for condonation for the late filing of that summary judgment
application.
[3] As a result of the defence being struck out, the plaintiff 's claim became
undefended . I consequently granted judgment in favour of the plaintiff for the
sum claimed as sought in the second and third prayers of the application to
strike out.
[4] It is important to clarify that the judgment granted was consequential upon the
striking out of the defence, and was not a determination of the summary
judgment application itself, which, along with other pending applications,
became moot in light of the striking out.
[5] The defendants’ principal ground for seeking leave to appeal is their assertion
that I erred in entertaining the application to strike out their defence before the
plaintiff 's application for condonation regarding its late summary judgment
application had been decided. They contend that until such condonation was
granted, the summary judgment application was not properly before the Court,
and therefore, they were not obliged to file heads of argument thereon, and
should not have faced the sanction of their defence being struck out.
[6] An important aspect of the proceedings on 3 February 2025, when the
consolidated applications were heard, is that the defendants had filed heads
of argument only in respect of their own applications for leave to amend their
plea. They did not file the heads of argument concerning the plaintiff 's
summary judgment or condonation applications as stipulated in the compelling
4
order of 7 September 2022, nor did they file any affidavit opposing the striking
out application to explain their disregard of the compelling order. At the
hearing, the defendants submitted that their intention to amend their plea –
and the asserted need for those amendment applications to be considered first
– effectively nullified their obligations under the prior court order.
THE TEST FOR LEAVE TO APPEAL AND NATURE OF DISCRETION
APPEALED AGAINST
[7] The governing test for leave to appeal is set out in Section 17(1)(a) of the
Superior Courts Act 10 of 2013. Leave may only be given where the judge
concerned is of the opinion that "the appeal would have a reasonable prospect
of success; or there is some other compelling reason why the appeal should
be heard". As noted in Mont Chevaux Trust (IT 2012/28) v Goosen & 18
Others:2
"It is clear that the threshold for granting leave to appeal against a judgment of a High
Court has been raised in the new Act. The former test whether leave to appeal should
be granted was a reasonable prospect that another court might come to a different
conclusion... The use of the word 'would' in the new statute indicates a measure of
certainty that another court will differ from the court whose judgment is sought to be
appealed against .”
[8] The discretion to strike out a defence due to non-compliance with rules or court
orders falls into the category of matters "so essentially for determination by the
court of first instance that it would ordinarily be inappropriate for a Court of
appeal to substitute its exercise of the discretionary power for the exercise
2 2014 JDR 2325 (LCC) at para [5]
5
thereof decided on by the court of first instance”.3 This principle limits appellate
interference. The defendants do not dispute the discretionary nature of my
order.
[9] It is well-established that an appellate court's power to interfere with the
exercise of such a discretion by a lower court is circumscribed. As stated in Ex
parte Neethling and Others,4 and Rex v Zackey,5 an appellate court does not
interfere merely because it might have exercised the discretion differently.
Interference is only justified if the court a quo exercised its discretion
capriciously, upon a wrong principle, failed to bring an unbiased judgment to
bear on the question, or did not act for substantial reasons; in essence, if a
judicial discretion was not exercised.6
SUMMARY OF APPLICANTS' GROUNDS FOR LEAVE TO APPEAL
[10] The defendants seek leave to appeal on multiple grounds. They contend that
I fundamentally erred in striking out their defence and consequently granting
judgment in favour of the Plaintiff. Their principal submissions include:
10.1. That the p laintiff's application for condonation for the late filing of its
summary judgment application should have been determined first.
Until condonation was granted, they argue, the summary judgment application was not properly before me, and thus no obligation arose
3 Tjospomie Boerdery (Pty) Ltd v Drakensberg Botteliers (Pty) Ltd and Another 1989 (4) SA 31
(T) at 36C
4 1951 (4) SA 331 (A) at 335D -E
5 1945 AD 506 at 511-513
6 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and
another 2015 (5) SA 245 (CC) at [88]
6
for them to file heads of argument in respect thereof (the "condonation
first" argument).
10.2. That I failed to consider or determine their own pending applications
for leave to amend their plea. They submit that their defence was not "finalised" or "complete" due to these pending amendments, and it was therefore premature and incorrect to strike out the defence before these amendment applications were adjudicated.
10.3. That my finding that their explanation for non-compliance with the
compelling order to file heads – specifically their submission at the hearing that their intention to amend their plea "overtook" the compelling order – was unconvincing, constituted an error.
10.4. That I erred in finding them dilatory and failed to properly consider
alleged dilatoriness on the part of the plaintiff, particularly its delay of nearly two-and-a-half years in bringing the strike-out application after the compelling order was granted.
10.5. That I misinterpreted the effect of the compelling order of 7 September
2022, which they argue was not an automatic entitlement for the plaintiff to have their defence struck out.
[11] They further contend that the outcome prejudiced their constitutional rights to
a fair hearing and to have their case properly ventilated.
7
ANALYSIS OF GROUNDS ADVANCED
[12] Having summarised the principal grounds upon which the defendants seek
leave to appeal, I turn now to consider whether these grounds, individually or
collectively, meet the requisite threshold for the granting of such leave.
[13] The Right to be Heard and Timeous Exercise of Rights: The right to be
heard is a fundamental tenet of our legal system. However, this right is not
absolute or unconditional. It does not equate to an entitlement to be heard at
any time of a party's choosing or in a manner that disregards the Rules of
Court, Court Orders, and the orderly progression of litigation. Litigants are
obliged to avail themselves of their rights and opportunities to present their
arguments and defences in a timeous and procedurally compliant manner. A
failure to do so, as is evident here, carries consequences.
[14] Failure to Formally Explain Non-Compliance in the Strike-Out
Application: A point of considerable significance, emphasised by the plaintiff ,
is the defendants ' failure to deliver a substantive answering affidavit in the
strike-out application itself. It argued that if no such affidavit was filed, or if it
failed to articulate the defences now raised, then the explanations proffered
for their non-compliance with the compelling order (such as the "condonation
first" argument or the argument that their amendments "overtook" the order)
were not formally before me as their pleaded defence to the strike-out
application at the time that application was heard and decided. I agree. The
absence of a formal, affidavit-based explanation at the critical juncture renders
their current arguments for leave to appeal largely ex post facto justifications,
and more importantly, raises nothing on which to assess their bona fides .
8
[15] Contradictory Litigation Postures and Impact on Bona Fides : The
argument presented by the defendants on 3 February 2025 – that their
intention to amend their plea and the need for their amendment applications
to be heard first "overtook" the prior compelling order – is fundamentally at
odds with the "condonation first" argument now forming the main ground for
this leave to appeal application.
[16] If their operative reason for not filing heads of argument for the plaintiff 's
summary judgment and condonation applications was that their own
amendment applications took precedence and needed to be resolved first, this
directly contradicts the assertion that their non-compliance was justified
because the plaintiff 's condonation application was pending. These are two
distinct, and mutually exclusive, justifications for their failure to comply with the
compelling order of 7 September 2022.
[17] This shift of primary justification significantly impacts the assessment of the
bona fides and soundness of the "condonation first" argument. It strongly
suggests that the "condonation first" point was not the genuine, primary legal
shield upon which they relied when their non-compliance was squarely before
the Court. My finding that no satisfactory explanation was tendered for this
non-compliance reflects the inadequacy of the explanation(s) actually
proffered at the hearing.
[18] Failure to Utilise Available and More Nuanced Procedural Options: The
compelling order of 7 September 2022 required the defendants to file heads
for the plaintiff 's summary judgment and condonation applications. Even if they
believed their amendments needed to be heard first, or that the summary
9
judgment was premature pending condonation, nothing prevented them from
filing heads of argument. At a minimum, they could have addressed the
plaintiff 's condonation application, which they had opposed, and explained
their position on the remaining applications. Their choice to file heads at the
very last minute only for their own amendment applications, while completely
ignoring the compelling order concerning the plaintiff 's applications,
demonstrates a selective and wilful disregard for a specific part of a court
order, not a principled stand based on the plaintiff 's pending condonation.
[19] Prior Opportunities to Assert a Coherent Defence: The defendants had
several earlier junctures to formally and substantively raise a consistent legal
defence for their escalating non-compliance. Their failure to do so, culminating
in an argument at the hearing that their amendments "overtook" the order
which contradicts their current primary ground for appeal, further weakens
their position.
[20] The Defendants' Focus on Plaintiff's Procedural Lapses: The defendants '
attempt to deflect from their own non-compliance by focusing on the plaintiff 's
earlier procedural misstep (the late summary judgment filing) does not assist
them. The plaintiff’s need for condonation was a distinct issue. It did not
absolve the defendants of their duty to obey a subsequent, direct court order
aimed at progressing the hearing of, amongst other things, that very
condonation application.
[21] Critique of Specific Assertions in Defendants' Grounds for Appeal: The
defendants , in their attempt to establish error, have advanced certain
10
submissions which are based on incorrect factual premises and flawed legal
reasoning.
[22] One such notable submission is the assertion that:7
"The learned Judge further erred in finding that the applicants ' failure to file heads due
to the intention to amend the plea, was unconvincing. The learned Judge failed to
consider that there was no application before him to compel the applicants '
compliance, nor was there any summary judgment application properly before him,
which necessitated any heads being filed by the applicants , despite the order to
compel, and, as such, it is submitted that the applicants ' behaviour was indeed
correct."
[23] This statement is untenable:
23.1. An intention to amend a plea, or an argument that such an intention
"overtook" a court order, is not a legally sound justification for
disobeying that order.8 A party's unilateral intention or pending
application to amend its pleadings cannot, as a matter of law, suspend
or nullify a pre-existing, specific, and peremptory court order directed
at that party. To hold otherwise would permit litigants to bypass court
orders at will merely by signalling an intention to amend, thereby
creating procedural uncertainty and undermining the authority of the
court.
23.2. The assertion that there was "no application...to compel...compliance"
before me at the hearing of 3 February 2025 (in the context of the
strike-out for non-compliance with a prior compelling order) is factually
7 Paragraph 4.16
8 See Leask v East Cape Forest (Pty) Ltd 2008 JDR 1316 (E) at 9
11
baseless. The strike-out application was predicated entirely on the
defendants ' failure to comply with the explicit court order of 7
September 2022, which did compel them to file heads of argument.
23.3. The claim that the summary judgment application was not "properly
before [me]...despite the order to compel" misunderstands the binding
nature of court orders. An order stands until set aside; the defendants
never sought to set aside the compelling order. Furthermore, that
order also pertained to the plaintiff 's condonation application.
23.4. The conclusion that the "applicants' behaviour was indeed correct" is
unsustainable given their direct failure to comply with a court order, a
failure they attempt to justify with flawed premises. Reliance on such
assertions further diminishes any reasonable prospect of success on
appeal.
[24] Argument Regarding "Incomplete Defence" Due to Pending
Amendments: The defendants further contend, as a ground for appeal, that I
erred in striking out their defence when there was a pending application to amend such defence, arguing that their defence " had not at that stage been
finalised, and it was therefore premature and incorrect... to strike out the
Applicants' defence." This submission is misconceived. The striking out of the defence was not predicated on an assessment of the substantive merits or completeness of the plea as it stood or as it might potentially be amended. Rather, the sanction was imposed due to a distinct procedural default: the defendants’ failure to comply with the compelling order to file heads of argument for the plaintiff’s summary judgment and condonation applications.
12
A party's pending application to amend its plea does not create an immunity
against sanctions for non-compliance with other unrelated court orders or rules of procedure. The orderly progression of litigation requires adherence to all court directives, and a party cannot unilaterally suspend its obligations under one order by pointing to its own aspirations to amend its pleadings for a different purpose. The argument that the defence was "incomplete" or "not finalised" is therefore not a valid legal justification for the non-compliance which led to the striking out.
[25] The Court's Discretion, Governing Legal Principles, and the Explanation
for Non-Compliance: The decision to strike out a defence is discretionary. As
established in Wanson (supra) and supported by Leask v East Cape Forest
(Pty) Ltd,
9 and Millu v City of Johannesburg Metropolitan Municipality and
another,10 contumacy is not the sole ground for the imposition of a such a
sanction. A history of non-compliance, dilatoriness, and the failure to provide
a satisfactory explanation for disobeying a court order – especially where the
explanation offered is legally untenable – can justify striking out a defence.
The principle from Chetty v Baker McKenzie,11 that in the absence of a full and
reasonable explanation for a material default, prospects of success are
immaterial, is also relevant by analogy. My original decision was grounded in
the lack of a satisfactory explanation for non-compliance.
[26] The Interests of Justice: The defendants invoke the "interests of justice" as
a standard for granting leave to appeal. While the interests of justice are
9 2008 JDR 1316 (E)
10 2024 JDR 1329 (GJ)
11 (2022) 43 ILJ 1599 (LAC) at [10] and [29]
13
indeed paramount, they encompass not only the rights of the defendants but
also those of the plaintiff and the integrity of the judicial process. The interests
of justice require litigants to comply with court orders, to participate in
proceedings meaningfully and timeously, and to ensure finality in litigation.
Allowing an appeal based on shifting justifications for clear non-compliance
with court orders, particularly where no formal explanation was tendered in the
primary proceedings, would not serve the broader interests of justice. Indeed,
the interests of justice are better served by ensuring that litigation is conducted
efficiently, that limited court resources are effectively utilised, that court orders
are respected, and that finality is achieved where a party has, through its own
conduct and lack of satisfactory explanation for defaults, effectively forfeited
its right to further contest the merits.
CONCLUSION ON APPLICATION FOR LEAVE TO APPEAL
[27] The defendants ' conduct at the hearing of 3 February 2025, specifically filing
heads of argument only for their own amendment applications and arguing
that their intention to amend "overtook" the compelling order, significantly
undermines their current primary reliance on the "condonation first" argument.
The explanation actually offered at the hearing for non-compliance with the
compelling order was, and remains, unconvincing.
[28] The contradictory postures adopted by the defendants , their failure to avail
themselves of more appropriate procedural responses, their reliance on
flawed assertions, and the stringent test for appellate interference with a
discretionary order of this nature, collectively demonstrate a lack of reasonable
14
prospects that an appellate court would find my exercise of discretion to strike
out the defence to be improper.
[29] In these circumstances, the defendants have not established that their appeal
would have a reasonable prospect of success.
[30] No other compelling reasons for the appeal to be heard have been
demonstrated.
ORDER
[31] The application for leave to appeal is dismissed with costs.
H M Viljoen
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT, JOHANNESBURG
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 29 May 2025.
Date of hearing: 23 May 2025
Date of judgment: 29 May 2025
15
Appearances:
Attorneys for the defendants : Darryl Furman & Associates
Counsel for the defendants : Adv. N Riley
Attorneys for the plaintiff : AD Hertzberg Attorneys
Counsel for the plaintiff : Adv. L Hollander