IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 14817 /2024
In the matter between:
WEITZ VILJOEN AND ASSOCIATES INCORPORATED PLAINTIFF
and
RISING DRAGON CONSULTING ( PTY) LTD DEFE NDANT
T/A ANTONIE CONSULTING
Neutral citation: Weitz Viljoen and Associates Inc v Rising Dragon Consulting (Pty)
Ltd (Case no 14817 /2024) [202 5] ZAWCHC 286 (14-07-2025 )
Coram: NUKU J
Heard : 29 April 2025
Delivered : 14 July 2025
Summary: Practice – Condonation – late delivery of an application in terms of Rule
30(1) – whether in the interest of justice to grant condonation
Practice - Pleadings – whether delivery of a special plea, plea -over and
claim in reconvention prior to the determination of an exception constitutes
an irregular step as contemplated in Rule 30 .
Practice - Exception to the plaintiff’s particulars of claim on the basis that
they lack averments necessary to sustain a cause of action - grounds of
exception – locus standi – authority of the plaintiff’s attorneys to act on
plaintiff’s behalf – incomplete cause of action – jurisdiction .
ORDER
1. Condonation for t he late service of the application in terms of Rule 30(1) is
granted;
2. The defendant ’s special plea, plea -over and claim in reconvention dated 28
August 2024 are set aside as an irregular step;
3. The defendant’s exception dated 15 August 2024 is dismissed ;
4. The d efendant is ordered to pay the costs , on scale A, of both the application in
terms of Rule 30(1) as well as the exception .
JUDGMENT
Nuku J
Introduction
[1] This judgment concerns an application that has been brought by the plaintiff in
terms of Rule 30(1) ( “Rule 30 Application ”) as well as an exception to the plaintiff’s
particulars of claim that has been taken by the defendant (“Exception ”).
[2] In the Rule 30 Application, the plaintiff seeks to set aside pleadings that were
delivered by the defendant after it had taken the Exception. These pleadings are a
special plea, a plea-over and a claim in reconvention. Plaintiff’s case is that these
pleadings constitute an irregular step for two reasons. The first is that these pleadings
cannot co -exist with an exception as was confirmed by this Court in Spar Group Ltd .1
The second relates only to the defendant’s claim in reconvention and it is that the
defendant has impermissibly joined additional parties to the action without the leave of
the court as required in terms of Rule 10. The Rule 30 Application was delivered out of
time and the plaintiff seeks condonation in that regard.
[3] The defendant followed i ts claim in reconvention with a notice of bar and the
plaintiff has not pleaded to the defendant’s claim in reconvention . If the Rule 30
Application fails, the plaintiff will be barred from pleading to the defendant’s claim in
reconvention. To cater for such an eventuality, the plaintiff seeks an order uplifting the
bar and granting it an extens ion of time within which to plead to the defendant’s claim in
reconvention.
[4] The Rule 30 Application is opposed by the defendant on various grounds
including various points in limine . On the merits, the defendant relies o n two grounds.
The first is that taking an exception to plaintiff’s particulars does not prevent a litigant
from delivering subsequent pleadings . For this ground, the defendant relies on its
interpretation of Rule 23(4) . The second is that the defendant is not required to obtain
leave of the court before joining additional parties to the proceedings and in any event
1 Spar Group Ltd v Hard as Nails (Pty) Ltd [2023] ZAWCHC 199.
the defendant may still apply for condonation for its failure if the leave of the court is
required .
[5] Three of the points in limine that the defendant has raised relates to plaintiff’s
non-compliance with the provisions of R ule 6(5)(a), 6(5)(b)(i) and (iii) . Two of the points
in limine relate to the late delivery of the Rule 30 Application and the plaintif f’s failure to
bring a separate application, in terms of Rule 27, for the extension of time . One point in
limine relates to the lack of proper service and the two remaining points in limine relate
to a failure by the deponent to the affidavit in support of the Rule 30 application to aver
that (a) he has the necessary locus standi, and ( b) that this court has the necessary
jurisdiction to entertain the Rule 30 Application.
[6] The Exception that the defendant has taken to the plaintiff’s particulars of claim is
that they lack averments necessary to sustain the action. The defendant has pleaded
seven grounds of Exception . Three of these grounds allege the lack of this court’s
jurisdic tion to entertain monetary claims less than R400 000. Three grounds allege
plaintiff’s failure to plead (a) that it has the necessary locus standi to institute the action,
(b) the place where the oral agreement was concluded, and (c) that the whole cause of
action arose within this court’s jurisdiction . The last ground questions the lack of written
authorisation confirming the authority of the plaintiff’s attorneys to act on its behalf in
these proceedings.
[7] Against what has been outlined above, this court must consider (a) whether to
condone the plaintiff’s delivery of the Rule 30 Application, (b) whether the Rule 30
Application has any merit, and (c) whether the Exception is good . Before doing so it is
necessary to provide a factual background.
Factual Background
[8] On 1 July 2024, t he plaintiff has instituted an action against the defendant
claiming delivery of a motor vehicle . In the alternative , the plaintiff claimed payment of
certain sums of money all of which are less than R400 000 . Plaintiff’s claim is based on
a verbal lease agreement concluded between the parties on 28 February 2024.
[9] On 2 July 2024, Mr Dale Dean Dreyden (Mr Dreyden) who describes himself as a
qualified legal consultant employed by the defendant and its sole director, emailed the
plaintiff’s attorneys seeking their consent to exchange pleading by email. The plaintiff’s
attorneys responded in the positive and from thereon, as will appear below , the parties
exchanged their pleading s by emails.
[10] On 22 July 202 4, Mr Dreyden emailed the defendant’s notice of intention to
defend to the plaintiff’s attorneys. On 15 August 202 4, he emailed the defendant ’s
Notice in terms of Rule 41A as well as the Exception to the plaintiff’s attorneys . The
Exception raise s the seven grounds referred to above as the basis for asserting that the
plaintiff’s particulars of claim lack averments necessary to sustain a cause of action.
[11] On 30 August 202 4, Mr Dreyden applied to the Registrar of this Court for the
allocation of a date for the hearing of the Exception . On the same date, he emailed the
defendant’s special plea, plea -over as well as the defendant’s claim in recon vention to
the plaintiff’s attorneys . Still on the same date, the plaintiff’s attorneys wrote to Mr
Dreyden advising him of the impropriety of delivering further pleadings prior to the
determination of the Exception as that constitutes an irregular step as contemplated in
Rule 30 .
[12] Mr Dreyden’s response o n 2 September 2024 was to deny that the deliver y of
further pleadings prior to the determination of the Exception constitutes an irregular
step. He im plored the plaintiff’s attorneys to take the necessary steps to ensure that the
plaintiff pleads to the defendant’s claim in reconvention . In the same correspondence he
further advised that he is taking the nec essary steps to have a date allocated for the
hearing of the Exception.
[13] On 9 September 2022, Mr Dreyden emailed the plaintiff’s attorneys enquiring
about their availability to argue the Exception during November 2024. The plaintiff’s
attorneys respo nded the same day advising that they would revert regarding their
availability. Later the same day, the plaintiff’s attorneys emailed the plaintiff’s notice in
terms of Rule 30 ( “Rule 30 Notice ”) to the defendant.
[14] The Rule 30 Notice alleged that the defendant had taken an irregular step by
delivering its special plea, plea -over as well as the claim in reconvention after the
defendant had taken the E xception. Additionally, it alleged that the defendant had taken
an irregular step by joining parties that were not party to the action without having
obtained leave of the court. The defendant was afforded a period of ten days within
which to remove the ca use of the complaint.
[15] On 23 September 2024, Mr Dreyden emailed the plaintiff’s attorneys insisting
that the defendant’s delivery of further pleadings post the Exception did not constitute
an irregular step. He made it clear that the defendant would oppose any application to
set aside the special plea, plea -over as well as the claim in reconvention as an irregular
step.
[16] On 17 October 2024, Mr Dreyden served the defendant’s notice of bar on the
plaintiff’s attorneys by email. On 18 October 2024, the plaintiff’s attorneys emailed the
Rule 30 Application that had not been issued at that stage. A properly issued Rule 30
Applica tion was served on the defendant by email on 23 October 2024.
[17] The Defendant opposes the Rule 30 Application on the grounds set out above.
The Rule 30 Application came before Slinger s J who made an order that it be heard
with the E xception on 29 April 2025. With that background , I proceed to consider the
application f or condonation for the late delivery of the Rule 30 Application.
Condonation
[18] The time frames applicable to an application under Rule 30 are set out in subrule
(2) which provides that:
‘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 has not himself taken a further step in the cause with knowledge
of the irre gularity;
(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 ten days;
(c) the application is delivered within fifteen days after the expiry of the second
period mentioned in paragraph (b) of subrule (2). ’
[19] At issue in the present matter is the lateness of the delivery of the Rule 30
Application in that it was delivered outs ide of the fifteen -day period referred to in subrule
30(2)(c) . As already mentioned above, the unissued Rule 30 Application was emailed to
the defendant on 18 October 2024 and a properly issued one was emailed to the
defendant on 23 October 2024. The fifte en-day period within which the Rule 30
Application should have been instituted expired either on 14 or 15 October 2024. Thus,
a properly issued Rule 30 Application was delivered , at most, seven days out of time.
[20] The plaintiff’s attorney deposed to an affidavit in support of the application for
condonation . The affidavit deals with an explanation for the delay, the degree of
lateness, prejudice as well as the plaintiff’s prospects of success .
[21] The essence of the plaintiff’s explanatio n for the delay in the delivery of the Rule
30 Application is to blame the defendant for the defendant’ s failure to confirm receipt of
the Rule 30 A pplication. In this regard , the deponent suggests that between 9
September and 23 September 2024, the plaintiff was uncertain whether the defendant
had received the Rule 30 application.
[22] The above explanation, however, does not bear scrutiny because (a) it does not
account for the entire period for the delay, and (b) it does not explain th e delay after 2 3
September 2024 when the defendant had made it clear that it intended to oppose any
application to set aside the defendant’s special plea, plea -over and the claim in
reconvention as an irregular step.
[23] The deponent to the affidavit in support of the application for condonation further
states that had the period been computed from 23 September 2024, the dies would
have expired on 29 October 2024 which would have meant that the Rule 30 Application
was instituted timeously . This, however, does not make sense because as the deponent
should know, the dies are computed from the date of the delivery of the Rule 30 Notice
until otherwise agreed to between the parties. There was such agreement between the
parties in this matter.
[24] The deponent , in a further attempt to explain the reason for the delay, alludes to
him misreading subrule 30(2)(c) as prescribing a twenty -day period within which the
applicat ion should be instituted . How he came to misread the rule is not explained . All in
all, the plaintiff’s explanation for the delay is far from being satisfactory but that an
explanation for the delay is but one of the basket of issues that must be considered
when determining whether to grant condonation.
[25] The length of the delay is one of the issues that must be taken into consideration.
The delay here was no t egregious and at most it was a seven -day delay.
[26] It was submitted on behalf of the plaintiff that the defendant has not suffered any
prejudice because of the seven -day delay . To the contrary, the plaintiff would suffer
immense prejudice if the condonation application was not granted.
[27] The defendant did not and could not complain of any prejudice because of the
seven -day delay because the delay did not have an impact on the further step that the
defendant wanted to take, namely the setting down of the Exception. To the contrary,
the plaintiff would be prejudiced in that it found itself in an invidious position when the
defendant served a notice of bar. Had it pleaded, it would not have been able to pursue
the remedy afforded by the rules. Because of its election to seek to pursue the reme dy
afforded by the rules, it risks being barred from ple ading to the defendant’s claim in
reconvention.
[28] As a matter of interest, Mr Dreyden states in his affidavit that he knew the plaintiff
would not be prejudiced by the fact of the defendant’s del ivery of its special plea, plea -
over and claim in reconvention. This, according to him, is because the plaintiff would not
be required to plead to the defendant’s special plea, plea -over and claim in
reconvention by way of replication until such time that the exception had been dealt
with. But the defendant has done the exact opposite by delivering the notice of bar an d
its position is that the plaintiff has been barred. Not only that but that it is not competent
for the plaintiff to apply for the upliftmen t of the bar in the Rule 30 Application. There is,
in my view, demonstrable prejudice to the plaintiff and none to the defendant.
[29] As shall become apparent when I deal with the merits of the Rule 30 Application,
the plaintiff enjoys good prospects of success. Further, the i mportance of the issue
under consideration transcends the parties’ narrow interests as it concerns a proper
interpretation of the interplay between Rule 22 and 23. Weighing up the weak
explanation for the delay against factors in favour of granting the condonation, I am of
the view that it is in the interest of justice to grant condonation for the late delivery of the
Rule 30 Application to which I deal with next.
Rule 30 Application
[30] As mentioned above already , the defendant, in addition to resisting the Rule 30
Application on the merits, has raised eight points in limine . In my view the starting point
should be consideration of these points in limine .
[31] Three of the defendant’s point in limine relate to non -compliance with the
provisions of Rule 6(5)(a), 6(5)(b)(i) and (iii) which read:
‘(5)(a) Every application other than one brought ex parte shall be brought
on notice of motion as near as may be in acc ordance with Form
2(a) of the First Schedule and true copies of the notice, and all
annexures thereto, shall be served upon every party to whom
notice is t be given.
(b) In a notice of motion, the applicant shall –
(i) appoint an address within 25 kilometres of the office of the
registrar and an electronic mail address, if available to the
applicant , at either of which address the applicant will accept
notice and service of all documents in such proceedings;
(ii) …
(iii) set forth a day, not less than 10 days after service thereof on
the respondent, on or before which such respondent is
required to notify the applicant, in writing , whether
respondent intends to oppose such application, and shall
further state that if no such notific ation is given the
application will be set down for hearing ion a stated day, not
being less than 10 days after service on the said respondent
of the said notice ;’
[32] The complaint by the defendant , in a nutshell, is that the plaintiff has not (a)
utilised Form 2(a) of the First Schedule to the Rules when initiating the Rule 30
Application has not been , (b) appointed an address that is within the 25 kilometres of
the office of the registrar, and (c) given the defendant 10 days’ notice to indicate its
intention to oppose the application nor the date by which the application will be heard if
the defendant does not file its notice to oppose the application.
[33] The plaintiff’s response is that the matters which the defendant comp lains of do
not apply to an application brought under Rule 30(1) because such application is
regulated by Rule 6(11) which reads:
‘Notwithstanding the aforesaid subrules, interlocutory and other applications
incidental to pending proceedings may be brought on notice supported by such
affidavits as the case may require and set down at a time assigned by the
registrar or as directed by a judge ,’
[34] The Rule 30 Application, so goes the argument, is interlocutory and incidental to
the main proceedings . In support of this proposition the plaintiff referred this court to
Graham2 where an interlocutory application was described as ‘an incidental
application for an order at an intermediate stage in the course of litigation , aimed at
settling or giving directions with regard to some preliminary or procedural question that
has arisen between the parties .’
[35] There is no doubt that the Rule 30 Application is an interlocutory ap plication or
an application incidental to the main action. In instituting the Rule 30 Application , the
plaintiff seeks an order at an intermediate stage in the course of litigation. That order is
aimed at a procedural question that has arisen between the p arties, the procedural
question being whether it is permissible to deliver further pleadings prior to the
determination of an exception.
[36] Subrule 6(1) prescribes that ‘ every application must be brought on notice of
motion supported by an affidavit …’ Subrules (2), and (5) then set out the requirements
2 Graham v Law Society, Northern Provinces 2016 (1) SA 279 (GP) at 289E -F.
of the notice of motion referred to in subrule (1) . All these requirements, however, do
not apply to interlocutory applications because all that is required in respect of
interlocutory applica tions is a notice supported by an affidavit . Notice under subrule (11)
does not mean notice of motion.3 That being the case, the plaintiff was not required to
comply with the provisions of subrules 6(5)(a), 6(5)(b)(i) and (iii). As such there is no
merit in any of the defendant’s points in limine in so far as they allege plaintiff’s failure to
comply with the provisions of these subrules.
[37] The granting of the condonation has disposed of two of the points in limine
relating to the late delivery of the Rule 30 Application and the plaintiff’s failure to bring a
separate application, in terms of Rule 27, for the extension of time. It only needs to be
mentioned that there is no requirement that an application for an extension of time or
condonation should be brought as a self -standing application. Such a requirement
would defeat the very object of the rules , which is to secure an inexpensive and
expeditious completion of litigation .4
[38] On the defendant’s approach, the plain tiff would have had to first bring an
application, under Rule 27, for extension of time within which to bring the Rule 30
Application. And only after the finalisation of that application would the plaintiff be able
to bring the Rule 30 Application. Needles s to say, that such an approach would result in
two judges having to consider the merits of the Rule 30 Application because the merits
have a limited role to play in the application for extension of time frames under Rule 27.
[39] The next point in limine complains of lack of proof of proper service of the Rule
30 Application . This is because, according to Mr Dreyden, the plaintiff’s attorneys have
not requested his consent to the electronic service of the application.
[40] Mr Dreyden seems to rega rd the Rule 30 Application as unrelated to the main
action in respect of which the parties have agreed to an electronic exchange of
3 Yorkshire Insurance Co Ltd v Reuben 1967 (2) SA 263 (E) at 263E -H.
4 Hudson v Hudson 1927 AD 259 at 267
pleadings. Mr Dreyden is mistaken in that regard because th ere is one matter between
the parties under case number 14817/202 4. There can be any number of interlocutory
applications along the way but the parties’ consent to the electronic exchange of
pleadings endures until the finalisation of the litigation or until it is withdrawn . And none
of the two has happened in this inst ance. Therefore, the defendant’s point in limine
regarding lack of proof of service is devoid of any merit. This is even more so since Mr
Dreyden himself says that ‘ The applicant delivered this application in its issued form on
23 October 2024, being 7 court days too late .’
[41] The two remaining points in limine relate to a failure by the deponent to the
affidavit in support of the Rule 30 Application to aver that (a) he necessary locus standi,
and (b) that this court has the necessary jurisdiction t o entertain the Rule 30 Application.
[42] The defendant ’s attack on the standing of the deponent to the affidavit in support
of the Rule 30 Application is ill-conceived because it is not the deponent that has
brought the Rule 30 Application but the plaintiff. The deponent to the affidavit in support
of the Rule 30 Application is nothing more than a witness who places evidence before
the court in respect of matters that fa ll within his personal knowledge. A witness need
not have locus standi because a witness has no interest in the subject matter of the
dispute between the litigants. The defendant’s point in limine relating to the locus standi
of the deponent to the affida vit in support of the Rule 30 Application is bad in law.
[43] The last point in limine relating to this court’s jurisdiction is just as bad. The Rule
30 Application is incidental to the main application that has been instituted out of this
Court. Axiomat ically , it is only this Court that must determine a procedural dispute that
has arisen between the parties in relation to litigation pending in this Court. Mr Dreyden
appears to suffer from the misconception that a litigant is required to plead legal
conclusions . It is not the pleading of legal conclusions that is required but the
examination of the pleaded facts as well as the relevant surrounding circumstances
which would include, in the present circumstances, the fact that the Rule 30 Application
is subordinate to or accessory to the main action. All the points in limine that have been
raised by the defendant have no merit.
[44] Turning to the merits of the Rule 30 Application, t he substance of the defendant ’s
defence is that there are no procedur al impediments to a litigant delivering a plea after
taking an exception to the plaintiff’s particulars of claim even if such an exception has
not been finally determined . For this proposition, the defendant relies on its
interpretation of R ule 23(4) which reads ‘ Whenever an exception is taken to any
pleading, no plea, replication, or other pleading shall be necessary .’ Properly
interpreted, according to the applicant, this rule means no more than that a party who
has taken an exception has an election on w hether or not to deliver after taking an
exception .
[45] The plaintiff, for its part, relying on its interpretation of Rule 22(1) contends that
the defendant must make a choice between delivering a plea with or without a claim in
reconvention and delivering an exception with or without an application to strike out .
Once the defendant had made its choice, it was bound thereto until the final
determ ination of the Exception. And that the delivery of the further pleadings whilst the
determination was still pending constitute an irregular step that is liable to be set aside
as found by this Court in Spar Group .
[46] Rule 22 (1) sets out steps to be take n by a defendant after delivery of a notice of
intention to defend and reads:
‘Where a defendant has delivered notice of intention to defend, he shall within
twenty days after service upon him of a declaration or within twenty days after
delivery of such notice in respect of a combined summons, deliver a plea with or
without a claim in reconvention , or an exception with or without application to
strike out .’
[47] Spar Group concerne d an application to set aside a notice in terms of Rule 23(1)
which ha d been delivered simultaneously with a special plea and a plea -over. This
Court made an order setting aside the notice in terms of Rule 23(1) and as part of the
reasoning stated that ‘ It must be stressed that a notice of exception cannot co -exist
simultaneously with a plea, as the delivery of a plea defeats the purpose of the
exceptio n5.’
[48] There is, however, a subtle difference between what this Court had to consider in
Spar Group and the present matter. In the present matter, the defendant has delivered
an exception which is a pleading.6 Like a plea , a properly drawn exceptio n concludes
with a prayer for relief.7 On the other hand, a notice in terms of Rule 23(1) is not a
pleading but a precursor to an exception .8
[49] The answer to the dispute between the parties must lie in the proper
interpretation of the respective rules they rely upon. The principles of interpretation are
trite regarding the triad of text, context and purpose.9
[50] Textually, the reading of Rule 22(1) favo urs a construction that a party must
choose between delivering a plea or an exception. This much appears from the use of
the disjunctive word ‘or’ that separates the word ‘plea’ and the words ‘exception’. Had
the intention been not to hold a litigant to a choice, the words ‘and/or’ would have been
used to convey that.
[51] Read in context, Rule 22(1) deals with pleadings that follow the delivery of the
notice of intention to defend or a declaration. The remain der of Rule 22 is then devoted
to the requirements for a plea and Rule 23 devoted to the requirements for an
exception. That context supports the view that one needs to look at Rule 22(1) for an
answer whether the co -existence of an exception and a plea is permissible. Rule 23(4)
5 At para [33]
6 Haarhoff v Wakefield 1955 (2) SA 425 (E)
7 Marais v Steyn & ‘n ander 1975 (3) SA 479 (T) at 483A
8 Hill NO. and Another v Brown 2022 JDR 0238 (WCC) at para [8]
9 Cool Ideas 1186 Hubbard 20 14 (4) SA 474 (CC) para 28
does nothing more than make it clear that it is not necessary to deliver a plea after
taking an exception.
[52] Having regard to the object of the rules regarding the inexpensive and
expeditious finalisation of litigation before c ourts, to permit the co -existence of an
exception and a plea would undermine that object. This is because that would result in
duplication where an excipient would be pursuing an exception whilst at the same time
progressing the main matter. That would further undermine the purpose that an
exception serves, namely the weeding out of hopeless cases. It could hardly make
sense to plead to a hopeless case because inevitably, the pleadings would have to be
amended after a successful exception and even worse, th e plaintiff might be unable to
put together a coherent case which would result in the matter dying a natural death.
Needless to say, that to proceed with the pleadings in those circumstances would result
in parties incurring costs that they need not incur and that could be avoided.
[53] There is also another reason that militates against the permissibility of the co -
existence of an ex ception and a plea, and it is that an exception is a pleading like a
plea. There can be no question that two pleas cannot co -exist. This is because they are
both pleadings that answer to the plaintiff’s claim. Two distinct exceptions can also, for
the same reason, not co -exist. The same logic must suggest that an exception cannot
co-exist with a plea . The delivery of further pleading s after taking an exception and prior
to the determination of the said exception, in my view constitutes an irregular step. The
question , therefore , is whether the court should exercise its discretion to set it aside.
[54] The court has a discretion whether or not to set aside an irregular step, and the
presence or absence of prejudice is usually decisive.10 The plaintiff, in my view, will be
prejudiced if the defendant’s special plea, plea -over and claim in reconvention are not
set aside. This is because the plaintiff will be barred from pleading to the defendant’s
claim in reconvention in circumstances where the claim in reconvention constitutes an
irregular step. After all, Mr Dreyden appears to have had a change of heart because
10 Hard NO and Another v Brown 2022 JDR 0238 (WCC) at [12]
initially his view was that the plaintiff would not be required to plead to the further
pleadings. What made him change his mind and d eliver the further pleadings, he has
not explained. In the result , the Rule 30 Application must succeed. The next issue to
consider is the Exception.
Exception
[55] It is convenient to start with the t hree grounds that allege the lack of this court’s
jurisdiction to entertain monetary claims that are less than R400 000. The defendant
could not refer this court to any authority in support of these grounds . This is
unsurprising because there is none. To the contrary, and a s correctly submitted on
behalf of the plaintiff , the High Court has concurrent jurisdiction in respect of matters
that fall within the monetary jurisdiction of the Magistrates Court as held by the Supreme
Court of Appeal in Standard Bank11 and the Constit utional Court in SAHRC .12 There is
this no merit in any of these grounds of exception.
[56] The next ground of ground of objection alleges the plaintiff’s failure to plead that
it has the necessary locus standi to institute the action against the defendant. The
defendant advanced t wo bas es for this ground of exception . The first basis is that the
plaintiff has failed to plead that it has a direct and substantial interest in the
proceedings. The second basis is that the plaintiff has failed to plead that it has the
necessary capacity to litigate.
[57] The plaintiff’s response to this ground of exception is that it has pleaded the
neces sary facts to establish locus standi. These facts include averments that the
plaintiff is , at all material times, the owner of the motor vehicle that is the subject matter
of these proceedings . These being proceedings being concerned with the return of the
11 Standard Bank of SA Ltd and Others v Thobejane and Others and the Standard Bank of SA Ltd v
Gqirana NO and Another 2021 (6) SA 403
12 South African Human Rights Commission v Standard Bank of South Africa Ltd and Others [2022]
ZACC 43 at [35 ]
said motor vehicle , the argument goes, the plaintiff’s direct and substantial interest is
self-evident, and it is not necessary for the plaintiff to plead those legal conclusions.
[58] There is merit in the plaintiff’s response. Litigants are required to plead facts on
the basis of which legal conclusions may be drawn . Pleading legal conclusions without
the necessary supporting facts would in fact be deficient because legal conclusions a re
not facts.
[59] The plaintiff has also pleaded that it is a private company that is registered in
terms of the relevant laws of the republic. A company registered in terms of the laws of
the republic has, as a matter of law, capacity to sue and be sue d unless it is under
supervision by a business rescue practitioner or in liquidation. In the citation of the
plaintiff in these proceedings , there is no suggestion that it is either under supervision
by a business r escue practitioner or in liquidation. Thi s ground of exception is equally
without merit.
[60] The next ground of exception alleg es that the plaintiff’s cause of action is
incomplete because of the plaintiff’s failure to plead the place where the oral agreement
was concluded .
[61] The plaintiff’s response to this ground of objection is that it is not a requirement to
plead the place where the agreement was concluded in order to establish a cause of
action. In this regard the plaintiff referred this court to Absa Bank Ltd13 where it was
stated that ‘ The rules of court exist in order to ensure fair play and good order in the
conduct of litigation. The rules do not lay down the substantive legal requirements for a
cause of action , nor in general are they concerned with the substantive l aw of evidence .’
It was submitted further that compliance with Rule 18(6) could be challenged
procedurally in terms of Rule 18(12) but not on the basis that the plaintiff’s particulars
lack averments which are necessary to sustain a cause of action.
13 Absa Bank Ltd v Zalvest Twenty (Pty) Ltd 2014 ( 2) SA 119 (WCC)
[62] That the plaintiff has not pleaded where the oral agreement was concluded is
common cause. To that extent, the plaintiff’s pleading is less than perfect. But is this not
a minor blemish or unradical embarrassment that can and should be cured by further
particulars as was stated in Living Hand s.14 The parties to the oral agreement are
pleaded together with the persons who represented them during the conclusion of the
oral agreement. Incidentally, it is Mr Dreyden who is alleged to have represented the
defendant when the oral agreement was concluded .
[63] The cause of action in this matter is not even relevant to the issue of jurisdiction
as the parties’ pleaded registered addressees are within this court’s jurisdiction. The
imperfect ion in the plaintif f’s particulars of claim, in my view, is not such as to
embarrassment serious enough to prejudice the defendant from pleading . It is a matter
that probably falls within Mr Dreyden’s knowledge but also it is something that can be
cured by further particulars. This ground of exception must also fail.
[64] The next ground of exception is directed at the jurisdiction of this court, a sserting
that the plaintiff has failed to plead that the whole cause of action arose within this
court’s jurisdiction . The comment I made above regarding the necessity to plead the
place where the oral agreement was concluded applies equally in respect of this
ground. Jurisdiction of this court has been established on the basis of the defendant
being within the jurisdicti on and it is not necessary to plead any additional facts which
may also establish jurisdiction. This ground of exception has no merit whatsoever.
[65] The last ground of exception questions the lack of written authorisation
confirming the authority of th e plaintiff’s attorneys to act on its behalf in these
proceedings. The short answer thereto is t hat the lack of written authorisation is not a
matter that goes to the cause of action. If the defendant wishes to dispute the authority
of the plaintiff’s attorneys to represent the plaintiff its recourse lies in Rule 7 . In the end
none of the grounds of exception have merit. The Exception must, in the result fail. It
remains to consider the question of costs.
14 Living Hands (Pty) Ltd v Ditz 2013 (2) SA 368 (GSJ) at para [15]
Costs
[66] The plaintiff has been s uccessful in both the Rule 30 Application and the
Exception and the usual rule that the costs should follow the result should, in my view,
apply. The plaintiff has, however, sought costs on a punitive scale in respect of the Rule
30 Application and costs o n scale C in respect of the Exception.
[67] The plaintiff initially sought the Rule 30 Application costs on scale B. This,
however, changed on receipt of the defendant’s opposing papers and this is because,
according to the deponent to the plaintiff’s rep lying affidavit, ‘The in limine defences are
unmeritorious. Despite the in limine defences, the respondent has not raised any real
factual or legal issue in opposing the application .’
[68] The defendant’s opposition of the Rule 30 Application was not, however, based
only on the points in limine . Mr Dreyden explained that he had regard to the provisions
of Rule 23(4) which he interpreted to me an that a litigant is not prohibited from
deliveri ng further pleadings after tanking an exception. The fact that Mr Dreyden’s
interpretation did not find favour with the court does not and cannot detract from the fact
that the defendant raised a legal issue in its opposition of the Rule 30 Application. In my
view, costs on an attorney and client scale are not warranted.
[69] The Rule 30 Application and the Exception do not engage difficult questions of
law and in my view, costs should be awarded on scale A.
Order
[70] In the result I make the following order:
70.1 Condonation for the late service of the application in terms of Rule 30(1) is
granted;
70.2 The defendant’s special plea, plea -over and claim in reconvention dated 28
August 2024 is set aside as an irregular step;
70.3 The defen dant’s exception dated 15 August 2024 is dismissed;
70.4 The defendant is ordered to pay the costs, on scale A, of both the
application in terms of Rule 30(1) as well as the defendant’ e xception.
_____________________________
L G NUKU
JUDGE OF THE HIGH COURT
Appearances
For plaintiff : MM Van Staden
Instructed by: CK Attorneys, Bloubergstrand
C/O: Bisset Boe hmke McBlain Attorneys, Cape Town
For defendant : Mr D D Dreyden , in his capacity as the director of the
defendant