IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: 5904/2024
In the matter between:
WILGEHEUWEL RETIREMENT VILLAGE (PTY) LTD Applicant /Respondent
and
CORNELIA JOHANNA VOLSCHENK Respondent / Applicant
Coram : Da Silva Salie, J
Judgment delivered : 29 July 2025
Counsel for Applicant : Adv. Whitcomb
Instructed by : Casper Le Roux Inc.
Counsel for Respondent : Adv. J Bernstein
Instructed by : Barnard Patel Inc.
JUDGMENT EX TEMPORE HANDED DOWN ON 29 JULY 2025
OFF ICE OF T H E CHIEF JUSTICE
REPUBLIC OF SOUTH AFRICA
STRIKING OUT APPLICATION
______________________________________________________________________
Order:
[17] For the reasons set out herein, the following order is made:
[i] “The application in terms of Rule 30 is dismissed with costs on scale A.”
______________________________________________________________________
DA SILVA SALIE, J:
[1] This is an opposed application brought in terms of Rule 30 of the Uniform Rules
of Court to set aside two sets of affidavits filed by the respondent in the pending
liquidation application (the "main application").
[2] This judgment is delivered ex tempore, shortly after the matter was fully argued
earlier today, and is of necessity brief.
[3] The applicant ("Wilgeheuwel") contends that these documents /affidavits —
marked AA1 (the replying affidavit) and AA2 (a re -commissioned founding affidavit) —
constitute irregular steps.
[4] The background to the main application is very brief as follows:
[4.1] The respondent, Mrs Volschenk, purchased a life right i n property with her
late husband under the Housing Development Schemes for Retired Persons Act
65 of 1988. After her husband’s passing and a decline in her health, she
cancelled the agreement with the applicant by mutual consent. As per the
cancellation agreement, the applicant became liable to repay an amount of
R889,000 by 18 April 2021. When payment was not effected, Mrs. Volschenk
instituted action to recover the aforesaid amount.
[4.2] Wilgeheuwel filed a plea to the action that another party, Ms. Juliana
Steyn, the attorney who received the proceeds in trust, should have been joined.
[4.3] Mrs Volschenk then brought an application for its liquidation on the basis
that it was unable to pay its debts. On the last page of the founding affidavit, the
commissioner of oaths details does however not set out the name in full nor the
address as required and inst ead his stated initials and surname, designation as
"predikant" (pastor /church minister ) with a designation number and the date.
Wilgeheuwel took issue with that omission and exclusively based its opposition to
the relief for liquidation on that aspect in its answering affidavit. I deal with this
aspect further hereunder.
[5] In the present Rule 30 application, Wilgeheuwel contends that AA1 (the replying
affidavit) was filed out of time without a substantive application for condonation, and that
AA2, being a re-commissioned founding affidavit, was irregularly filed without the leave
of the Court. The argument follows that such leave should have been sought on notice
of motion, failing which the affidavits are irregular and prejudicial. In the result, it i s
argued that it had been deprived of an opportunity to contest the grounds for
condonation of the non-compliance and thus suffers prejudice. Differently stated, it was
argued that the respondent's failure to obtain the Court's leave to condone its non -
compliance had reversed the onus onto Wilgeheuwel to bring an application to file a
further set of affidavits to answer to or oppose the filing of the late and irregular
affidavits.
[6] In the main liquidation application, Wilgeheuwel raised in its answering affidavit
two objections, so called technical defences . These objections were the only two
grounds upon which liquidation was resisted, which were related to the defects in the
commissioner of oaths’ details . In this application, Wilgeheuwel takes issue with the
correction of the commission of oaths details and contends that the replying affidavit
was filed late . For those reasons, both ought to be set aside as irregular steps. The
applicant’s submission presupposes that the re -commissioned affidavit constitutes a
second founding affidavit, which it argues was impermissibly filed without leave given
that it was late.
[7] I queried counsel for the applicant during his submissions as to the nature of the
alleged prejudice which must be illustrated and whether the discretion to admit the
affidavits does not ultimately lie with the Court hearing the main application. The latter
would be able to consider the issues raised on condonation and non-compliance within
the full context of the factual matrix of the matter and not as a mere technical aspect,
nor in vacuum, as presently sought. I ventilated with him that t he consideration and
adjudication of condonation issues at the hearing of the matter is a most common
procedure and oft-occurrence in our Courts as points in limine.
[8] Counsel submitted, with reference to various authorities, that procedural
irregularities of this kind require Court’s leave and that mere filing does not suffice.
Practically, this contention envisages a separate application in Third Division, which
given Wilgeheuwel's opposition would have to be postponed and heard on the opposed
motion roll (fourth division) on a later date as may be set down by the Chief Registra r.
This would amount to a substantial delay before the liquidation application could be
heard by a Court. It also contemplates, if the opposition succeeds, the respondent will
have to withdraw the two affidavits (AA1 and AA2) and then bring a further separate
application for condonation for the filing of the amended founding affidavit and the late
filing of the affidavit in reply. In other words, I see the argument to amount to the
applicant in the main application for liquidation to then have to start de novo.
[9] Counsel maintained that as matters stand Wilgeheuwel is prejudiced by being
compelled to rebut the facts alleged in condonation without having had the opportunity
to oppose such condonation procedurall y. It was also contended that the respondent's
delay of nearly two months was insufficiently explained
[10] For the respondent, it was submitted that the applicant failed to establish any real
prejudice or to demonstrate that the steps taken were irregular as contemplated by Rule
30 nor has it shown that it suffers any prejudice. Reliance was placed on Anglo
Operations Ltd v Sandhurst Estates (Pty) Ltd 2007 (2) SA 363 (SCA), to support the
submission that the applicant seeks to exploit a technical ity rather than engage the
merits. In so doing it is seeking to delay, impermissably, the ventilation of the main
application. The argument followed that the grounds for condonation were set out in the
replying affidavit, under a separate heading with it specifically stating that leave would
be sought from the Court at the hearing of the matter to condone the correction of the
commissioner’s details and the late filing of her replying affidavit. Wilgeheuwel took a
technical point as its objection to the application for liquidation and sought dismissal of
the relief purely on that basis. T he remedied founding affidavit means that it could no
longer reply on its exclusively technical opposition to the liquidation, however, this is not
sufficient to support a contention that the prejudice for the applicant is that the
correction amounts to nullifying the technical opposition which it had raised in its
opposition to the liquidation application . The failure to demonstrate prejudice based on
the respondent’s irregularities is fatal. In other words, the only prejudice is one of being
deprived of the opportunity to raise technical objections, however there is no real or
substantial prejudice suffered by the applicant. The argument followed that a Court may
at the hearing of the matter, in its discretion, permit the filing of irregular or late affidavits
and that such relief could be sought before or after the affidavits had been filed. Either
way, whether leave is sought before or afterwards, in seeking an indulgence, the Court
will consider the reasons and explanation for the affidavit being late /irregular, having
regard to all the circumstances of the case.
[11] I stood the matter down to reconvene after the lunch adjournment to consider the
bundles of authorities handed up by both counsel and their submissions made.
Discussion:
[12] As I see it, the crux of the applicant’s case is that the affidavits were “slipped in”
without a proper application and thereby attempt to circumvent the rules. The leave of
the Court, it was argued, must be sought to permit the affidavits. I find this argument
rather problematic and without merit. In my view, the real issue for the applicant or as
the proverbial saying goes, the thorn in its flesh, is that the applicant chose to approach
the opposition to the application for liquidation on a purely technical basis and elected
not to engage in the merits or answer theret o. It purely based its opposition to its
liquidation on the basis of it being unable to pay its debts on the shortcoming with the
sub-regulations of the Justices of the Peace and Commissioner of Oaths Act 16 of
1963. Now that the respondent has taken the step to remove the basis for th at
complaint, its opposition to the liquidation prayer is seemingly extirpated, should a Court
grant the condonation at the hearing. What would be left in its opposition as it stands
presently? Nothing, since it had not answered anything relating to the merits of the
claim for liquidation. That is really the nub of concern for the applicant. However,
should the applicant wish to address the reasons relating to condonation and oppose it,
a Court hearing the liquidation application would certainly not deny it an opportunity to
do so. The basis for such an affidavit would be to address new matters raised by the
opposing party who seek the indulgence. The audi alterem partem rule guarantees that
a party would be able to answer such new facts. This application is thus wholly
unnecessary and, in my view, a dilatory effort to avoid the ventilation and adjudication of
the application for liquidation of the respondent.
[13] It is indeed so t hat the Court retains the discretion to permit late or irregular
filings. However, that discretion properly vests in the Court seized with the main
application. It is that Court who is to consider the condonation application and determine
whether the irregularities, if any, should be excused or condoned and/or give further
directive/s as it considers prudent taking into account the nature and circumstances of
the matter and the interests o f justice. The present application seeks to usurp that
discretion prematurely and denude the power of the Court hearing the liquidation
application.
[14] The corrected founding affidavit (correcting the commissioner’s details) in my
view is not a new or supplementary affidavit in the true sense as it does not add new
matter. No new issues are added or addressed in the body of the affidavit. Stripped
down to the core, all it really did was blow out the technical defences which the
applicant raised in opp osition to an application for it to be wound up based on the
shortcomings of the Commissioner of Oaths details.
[15] I am not persuaded that the applicant suffers any real prejudice of the kind
contemplated by Rule 30. The respondent had, in her affidav its, explained the
circumstances of the late filing and stated that leave would be sought at the hearing of
the main matter. The defects in the commissioning of the founding affidavit are sought to
be remedied in AA2 simultaneously filed with the replying affidavit (AA1). Ultimately, the
respondent bears the risk of her non -compliance of the rules and the onus to persuade
the Court hearing the liquidation application to condone the delay in filing her replying
affidavit and the correction of the Commissioner’s details in her founding affidavit. The
applicant retains the right to oppose the leave for condonation and consequent relief on
affidavit, for the Court hearing the matter to consider as a point in limine.
[16] Our Courts have consistently stated that rules serve the interests of justice and
should not be applied rigidly. Over-formalism is discouraged. The aim of the rules is the
expeditious and fair resolution of dispute s. In the absence of demonstrable prejudice
and where the issue can be more appropriately determined by the Court hearing the
main application, I am not persuaded that this Rule 30 application bears any merit. For
these reasons the application must fail.
Order:
[17] For the reasons set out herein, the following order is made:
[i] “The application in terms of Rule 30 is dismissed with costs on scale A.”
_________________________
DA SILVA SALIE, J
JUDGE OF THE HIGH COURT
WESTERN CAPE