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Introduction
[1] This appeal is against the order and judgment of the Acting Magistrate V van der
Merwe for the Johannesburg Central District Court granted on 7 December 2023 . The
Court a quo granted an order in favour of the respondent uplift ing the bar. The appellant
challenges the decision of the Magistrate on the basis, inter alia , first, that the Court a quo
failed to first adjudicate the point in limine raised and further granted the application in
instance where the respondent failed to disclose its bona fide defence .
Background
[2] The appellant obtained judgment in 2022 which the respondent successfully
rescinded. The appellant s subsequently amended the particulars of claim. The appellant
delivered notice of bar on the respondent on 13 June 2023 . The plea was then due on 21
June 2023 but was served two days later, on 23 June 2023 , with the hard copy delivered on
26 June 2023.
[3] The appellant launched an applicatio n for default judgment on 5 July 2023, and the
respondent launched an application to uplift the bar and condonation for the late filing of
the plea on 6 July 2023.
Before Court a quo
[4] The appellant raised a point in limine that the respondent had failed to canvas its
defence in detail in the founding affidavit and instead purported to introduce its defence in
the replying affidavit. To this end , counsel argued that the application to uplift the bar
should be dismissed. The Court should exclusively rely on the applicant’s case as set out
in the found ing papers and in the absence of such allegations then cadit questio .
[5] In its application for rescission that the appellant referred the court to the plea and
prayed that the contents thereof should be incorporated in the application to uplift the bar.
[6] The appellant contended that the respondent was aware at least on 23 June 2023
that the plea served was no accepted but failed to timeously launch an application for the
upliftment of the bar. Instead , the respo ndent awaited the application for default judgme nt
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served on 5 July 2023 and only then br ought an application for the upliftme nt of th e bar on
6 July 2023. To thi s end, counsel argued, the Court should not come to the assistance of
the res ponde nt who flagrantly disregarded the rule s of court.
[7] The Court a quo noted that a party requesting the upliftment of the bar should
persuade the court by providing sufficient reasons for the delay and demonstrate that such
a party has a bona fide defence. The Court a quo considered the explanation proffered by
the respondent and concluded that there was no utter disregard to the rules. The respondent
having explained of the miscommunication between the attorneys situated in Durban and
its correspondents' attorneys located in Johannesburg that t he notice of bar was forwarded
by the correspondent attorney in Johannesburg on 14 June 2023 . The attorneys then
reckoned that the 5 days mean t that the plea would have to be served on 22 June 20 23 and
then diarised his file to the 21 June 2023.
[8] A plea was then draft ed and forwarded to counsel to settle same . The counsel
reverted on 2 1 June 2023 with a plea but still needed further information from the
respondent who could not provide same on time. An extension was then requested on 22
June 20 23 from the appellant’s attorneys for the service of the plea. In response the
appellant ’s attorneys stated in wr iting that the respondent is already under bar as the 5 days
expired on 21 June 2023 .
[9] The Court a quo had regard to the sentiments echoed in Eke v Parsons ,1where it
was held that the “courts should not be detained by the rules and should deviate where
justice so warrant. ” In the premises the Court a quo found that the explanation by the
respondent was sufficient.
[10] With reg ard to whether a bona fide defence exist the Court a quo had regard to what
was stated in the plea incorporated in the application for rescission and noted that the
respondent raised the question of locus standi , jurisdiction and further sought to challenge
the quantum claimed by the appellant . These issues were not challenged by the appellant
1 2016 (3) SA 37 (CC).
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in his papers resisting application for rescission . The Court a quo was therefore persuaded
that a case for rescission was made out and therefore granted same.
[11] The appellants instituted the appeal process and the grounds for the appeal are
detailed hereunder.
On appeal
[12] The grounds for the appeal raised by the app ellants were, first, that the court a quo
failed to make a ruling on the point in limine that the respondent did not set out its defence
in the founding papers. Second ly, that the application for the rescission was not launched
timeously. Third ly, the explanation for failing to serve the plea timeously was not
sufficiently explained . Fourth ly, the Court a quo failed to consider that the indu lgence
sought by the respondent would be compensated by a suitable costs order. Fifth ly, that the
respondent’s affidavit was deposed to by an attorney and not supported by a confirmatory
affidavit by the respondent who ha d personal knowledge of the facts. Sixth ly, that the Court
a quo granted an extension of time for a period of 7 seven days which was not requested in
terms of Rule 60(5)(a) of the Magistrate Court Rules. Lastly, that the court a quo ordered
that each party pay their respective costs despite that the respondent having requested
indulgence and further found that the appellant’s opposition was vexatious or frivolous.
Submissions by the parties
Point in limine – Appealability of the order
[13] The respondent contended that the order uplifting the bar is not final in nature and
therefore not appealable. The determining factor for appealability , the respondent argued,
is whether the decision of the Court a quo disposes of an issue between the parties. In this
instance the judgment is interlocutory, and no issue inter se was disposed of. Further that
the test for appealability has been set out by t he Constitutional Court in Intern ational Trade
Administration Commission v SCAW South Africa (Pty) Ltd ,2 at para 53 where it was stated
2 2012 (4) SA 618 (CC).
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that “… the more context -sensitive standard of the interest of justice ...” is the applicable
test.
[14] The appellant agreed that the test to determine the question of appealability is
whether it is in the interest of justice that the order be appealed against.
[15] The raison d’tre underpinning the prohibition of appealing some of the
interlocutory orders is to avoid piecemeal adjudic ation of matters which may unreasonably
exhaust the judicial resources. In this lis the order granted does not resolve any of the issues
between the parties. It does not go to the root of the lis inter partes and this can also be
noted from the fact that the defences which were raised in the plea delivered by the
respondent were not dealt with. In fact, despite the fact that the responden t stated in the
found ing affid avit that the plea delivered should be incorporated in the affidavit - the
appell ant did not specifically or at all engaged with the said defences. In the circumstances
I find that indeed the order granted is interlocutory and not appealable and the point in
limine is sustainable.
[16] Having concluded as aforesaid, there is no reason for this Court to inter rogate the
grounds upon which the appeal is predicated.
[17] Even if the aforegoing conclusion is found wanting, the Court a quo considered the
requirements for the upliftment of the bar.3 The explanation advanced by the respondent
for failure to deliver the plea timeously (being late only with two days) was found to be
sufficient by the Court a quo . A finding to the contrary would have meant that the Court a
3 As can be gleaned from Rule 27(3), the Court, may on good cause shown, condone any non -compliance with the Rules
of Court. It therefore was peremptory for the applicants to establish the existence of good cause, why its application for
condonation should b e granted, to pave the way for it to deliver its pleas. Good cause in broad entails the consideration
of the following: (i) a reasonable and acceptable explanation for the default; (ii) a demonstration that a party is acting
bona fide; (iii) that such part y has a bona fide defence which prima facie has some prospects of success; (iv) a full
explanation of the default so that a court may assess the explanation. (See Colyn v Tiger Food Industries Limited t/a
Meadow Feed Mills (Cape) 2003 (2) All SA 113 (SCA) . The aspect of good cause was reiterated in Dalhouzie v Bruwer
1970 (4) SA 566 (C) by adding two requirements. Firstly, the applicant should file an affidavit satisfactorily explaining
the delay. Secondly, the applicant should satisfy the court on oath that he has a bona fide defence. A third requirement
has been add ed by authorities namely, the granting of the indulgence sought must not prejudice the plaintiff. (vi) In Smith
NO v Brummer NO 1954 (3) SA 352 (O) at p358, five factors were highlighted where the courts have a tendency to grant
a removal of bar. (vii) In Ferris v FirstRand Bank Ltd 2014(3) SA 39 CC the Constitutional Court held that lateness is
not the only considering factor. The test for condonation is whether it is in the interest of justice to grant it, which incl udes
factors such as applicant’s prospects of success and the impo rtance of the issue to be determined.
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Date s:
Date of Hearing: 30 January 2025
Date of Delivery : 13 June 2025 .
Appearances :
For the Appellant: JK Maxwell , instructed by Eugene Marais
Attorneys .
For the Respondent: U Ahir, instructed by Strauss Daly INC
Attorneys .